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• CIVIL PROCEDURE Federal law pre-empts disposable-lighter suit Federal regulations pre-empt a state tort claim that a disposable lighter was negligently designed, the Texas Supreme Court ruled on April 18. Bic Pen Corp. v. Carter, No. 05-0835. The U.S. Consumer Product Safety Commission adopted regulations requiring disposable lighters to be child resistant. Among other requirements, a lighter can be certified as child-resistant if it cannot be operated by at least 85% of children. A 6-year-old Texas girl was badly burned when her 5-year-old brother set her dress on fire with a Bic lighter. That model and five “surrogates” had achieved an overall 90% child-resistant rating. The girl’s parents sued the manufacturer for design defect, and a Texas trial jury awarded $5 million in actual and punitive damages. An intermediate state appeals court affirmed. The Texas Supreme Court reversed. Under the U.S. Consumer Product Safety Act, the commission could have imposed a stricter standard but decided not to because those standards would reduce the lighter’s utility and convenience and increase its cost, the court said. Imposing a common law standard of heightened liability would be contrary to the commission’s plan. The court noted that its decision was in line with a Mississippi Supreme Court ruling, but differed from one issued by the U.S. District Court for the Southern District of New York.   Full text of the decision Resort to bankruptcy didn’t require notice A trial judge abused his discretion by sanctioning a lawyer who filed a bankruptcy petition for his client on the eve of the client’s civil trial in state court, the Virginia Supreme Court ruled on April 18, reversing a $14,000 sanction against the lawyer. McNally v. Rey, No. 070522. Lawyer John J. McNally defended Simonz Inc. in a breach of contract case. McNally discussed with his client the option of filing for bankruptcy. On the evening before the trial, McNally filed a bankruptcy petition on his client’s behalf. Opposing counsel asked the judge to sanction McNally with costs, attorney fees and other penalties. McNally filed a letter with the court, saying that it would have been an ethical violation to disclose the client’s intentions without the client’s permission. Without a hearing, the judge ordered McNally to pay about $14,000, plus the cost of calling a jury, ruling that it was in bad faith to have filed a trial witness and exhibit list when McNally didn’t intend to try the case. McNally appealed. The Virginia Supreme Court reversed unanimously. “Simply stated, the record before this Court is devoid of any evidence that supports the circuit court’s award of sanctions,” it said. McNally filed the witness and exhibit list under the lower court’s pretrial order. Moreover, the lawyer had no obligation to inform opposing counsel or judge that a client is contemplating bankruptcy. “To hold otherwise would have a chilling effect upon the rights of litigants and their attorneys when such litigants seek to avail themselves of their statutory rights set forth in the federal Bankruptcy Code.” • CRIMINAL PROCEDURE Another circuit allows jurors to ask questions Although the practice is risky, judges may allow jurors to pose written questions to trial witnesses, subject to safeguards, the U.S. Circuit Court of Appeals for the District of Columbia ruled on April 15. U.S. v. Rawlings, No. 06-3087. Franco J. Rawlings was convicted of being a felon in possession of a firearm. He alleged that the trial judge improperly let jurors submit questions for trial witnesses. The judge and lawyers reviewed all questions and, if they deemed them appropriate, the judge presented the queries to witnesses. Rawlings’ counsel raised no objection. Affirming, the D.C. Circuit noted that at least 10 federal appellate courts have ruled that such questions are within the trial judge’s discretion and are not prejudicial per se. The practice offers “substantial benefits,” like helping jurors to focus and clearing any confusion, the court said. The court insisted upon rigorous balancing of the risks and rewards of the practice in each case, but concluded that here the judge “scrupulously” followed the necessary safeguards. Law banning secret compartments tossed A state law criminalizing secret compartments in vehicles is an unconstitutional violation of due process, the Illinois Supreme Court ruled on April 17. State v. Carpenter, No. 103616. Derrick Carpenter was convicted of having a false or secret compartment in a vehicle and sentenced to two years’ imprisonment. On appeal, an intermediate appellate court declared the law an unconstitutional violation of substantive due process guarantees because it potentially encompassed innocent conduct. The state appealed. Meanwhile, the ruling was cited by trial judges in dismissing similar indictments in two unrelated cases. The state appealed those dismissals, and the Illinois Supreme Court consolidated the three cases. The Illinois Supreme Court affirmed. While the law’s goal of protecting police and punishing those who hide guns and contraband from officers may be laudable, the law is not a reasonable method of accomplishing that objective, the court said. The court noted that no illegal weapon was found in any of the three cases. The court rejected the state’s argument that intending to conceal something from law enforcement officers necessarily entails illegal conduct. “Citizens have recognized expectations of privacy in their belongings and the containers in which those belongings are kept,” the court said. • CONSTITUTIONAL LAW City’s limits on picketers were narrowly tailored A city ordinance requiring protesters to obtain a permit to picket on public property did not violate the First Amendment right to free speech, the 4th U.S. Circuit Court of Appeals ruled on April 16. Green v. City of Raleigh, No. 07-1351. Dennis Green and a group of at least 10 others held picket signs and distributed fliers outside a Promise Keepers meeting at a sports arena in Raleigh, N.C. They were ordered off the private property and continued their demonstration along the nearby public right of way. A police officer discovered that Green’s group lacked a city permit for their gathering and informed members that they were subject to citations, fines and the confiscation of their signs. They left, but Green sued the city in federal district court, arguing that limiting the size of their signs and requiring them to obtain a permit violated the First Amendment rights of free speech and peaceable assembly. Although the city later amended the ordinance to increase the permitted sign size and to exempt small groups of fewer than 10 people from the notice requirement, Green argued that the amended ordinance also violated his constitutional rights. A federal trial judge granted summary judgment to the city. Green appealed. Affirming, the 4th Circuit ruled that neither the original nor the amended ordinance violated Green’s constitutional rights. The restrictions were narrowly tailored to serve the city’s interest in the “pragmatic necessities of regulating demonstrations on public thoroughfares.” The court noted that the ordinances allowed the city no “discretion to grant, deny, or set conditions on permission to demonstrate” and required no payment. Restricting picketers to the outer edges of a sidewalk was reasonable to prevent them from blocking access to a building. The designated size of the groups exempted was reasonable in light of the large number of groups mounting protests in a state capital. The record contained “uncontroverted evidence regarding the traffic and safety interests supporting” the sign size restrictions. • FAMILY LAW Abuse prevention trumps defense-of-property law The common law defense-of-property justification for using force is irrelevant to determining whether an abuse-prevention order is needed, a divided Vermont Supreme Court ruled on April 18. Raynes v. Rogers, No. 2006-342. After breaking up from a six-year relationship, Mary Raynes and Earl Rogers continued to argue over personal property, including a horse and a dog. During an argument, Rogers kicked Raynes’ car door, grabbed her wrists and shoved his elbow into her neck in an attempt to wrestle the dog out of Raynes’ arms. She later sought to make a temporary abuse-prevention order final. Rogers claimed he was entitled to use the force against Raynes necessary to protect his property. The state family court disagreed, noting that Rogers had also repeatedly driven past Raynes’ house, and made the order final. The Vermont Supreme Court affirmed. Under the state Abuse Prevention Act, a court considering a request for an abuse-prevention order evaluates the totality of the circumstances, keeping in mind the duty to determine whether a party needs protection from intimate abuse. The court does not decide which party is to blame for the underlying dispute. A claim that a defendant was entitled to use force is irrelevant. The dissent argued that, under the majority ruling, “when an ill-meaning relative, or past or present disgruntled lover, dating partner, roommate or housemate enters your home and, in front of you, grabs your property and runs off with it, or even destroys it, you may not lawfully resist.” • PERSONAL PROPERTY Court can’t order party to buy out joint property A court’s equitable powers in partition actions do not include the power to order one party to buy out another party’s share of jointly owned property, the North Dakota Supreme Court ruled on April 17. Wenzel Estate v. Wenzel, No. 20070264. Curtis and Bruce Wenzel jointly owned farm land, buildings and machinery. After Bruce died, a trial court divided the land and ordered Curtis to buy out Bruce’s estate’s share of the farm machinery. The trial court took into account some bills paid by Curtis and awarded the estate interest for Curtis’s use of the machinery without paying rent. Curtis appealed from the order for partition. The North Dakota Supreme Court reversed. State law allows the forced partition of real or personal property belonging to partners, joint tenants or tenants in common if that can be done “without great prejudice to the owners,” the court said. “However, the parties have not cited, and we have not found, a case or statute in this jurisdiction or other jurisdictions that authorizes forced purchases by ordering one party to buy another party’s share of jointly owned property, absent a prior agreement to purchase.” If the trial cannot arrange a fair partition of the machinery, it should order its sale. • TAX LAW Only joint filers eligible for innocence claims A federal law that protects innocent spouses from tax liabilities incurred by their spouses was available only to taxpayers who filed a joint federal income tax return, the 9th U.S. Circuit Court of Appeals ruled on April 21. Christensen v. Commissioner, No. 06-71881. The Internal Revenue Service (IRS) assessed tax liabilities against Lanny Christensen for what he claimed was underreporting on income from his wife’s business. Although Christensen and his wife filed individual returns, he was jointly responsible for her tax liabilities under California community property law. Christensen argued that he was entitled to the equitable relief for innocent spouses provided by 26 U.S.C. 6015. The IRS rejected Christensen’s request. The U.S. Tax Court granted summary judgment to the IRS, holding that the law covered only spouses who filed joint returns. Christensen appealed. Affirming, the 9th Circuit cited the legislative history and the language of the law’s various subsections. The court noted, quoting precedents, that statutory titles were not part of legislation, but added: “[O]ur first indication of the statute’s scope is set forth in the title of � 6015: ‘Relief from joint and several liability on joint return.’ By using this title, ‘Congress must have intended to introduce the subject that was to follow:’ relief for spouses who file joint returns.” Auto insurer entitled to solidary liability credit An uninsured motorist insurer is entitled to a credit for medical and disability benefits paid to an injured employee by a workers’ compensation insurer, the Louisiana Supreme Court ruled on April 18, citing that state’s doctrine of solidary liability. Bellard v. American Central Ins. Co., No. 2007-C-1335. Eugene Bellard, a delivery driver for Builders Sav-Mor Inc., was rear-ended by a vehicle driven by Katie Gayle. Following two subsequent accidents, he underwent four surgeries to repair his injuries. Bellard sued Gayle, her liability insurer and Trinity Universal Insurance Company of Kansas Inc., the uninsured motorist carrier for Sav-Mor. After the first two defendants settled, the trial court ruled that Trinity was entitled to a credit for all payments made to Bellard as workers’ compensation benefits. Bellard ultimately won $334,000 in medical expenses, less the credit to Trinity. A state intermediate court of appeal reversed, ruling that Trinity must pay the $334,000 in medical expenses. The Louisiana Supreme Court reversed. State law defines a solidary obligation as “when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee.” The court said that an uninsured motorist carrier and a workers’ compensation carrier are solidary obligors because they share coextensive obligations to reimburse the tort victim for lost wages and medical expenses. Ruling otherwise would let Bellard recover twice for his damages.

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