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Cases
Source:
Westlawinternational.com
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Criminal Justice: Exception to collateral estoppel based on
intervening change in law permitted adjudication of refiled case.
An
exception to the doctrine of collateral estoppel, based on an intervening
change in the applicable law, precluded application of the doctrine and
therefore the trial court could adjudicate defendant's DUI case that had
been previously dismissed without prejudice and then refiled based on the
intervening change in the law. The initial case was dismissed on the ground
that the medical assistant who drew defendant's blood was not a
"qualified person" to draw blood under the applicable statute,
but a subsequent case law ruling that a phlebotomist was a "qualified
person" under the statute constituted an intervening change in the
law.
State
v. Whelan
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Environmental Law: Tort award was not warranted in groundwater
contamination case.
Judgment
was awarded to several industrial companies, in a tort action brought by
the State of New Mexico, because the State failed to establish that a
chemical contaminant plume existed deep in the groundwater which was beyond
the scope of remediation systems which had already been put in place by the
State Environment Department and the companies. The purported deep
contamination was not beyond the scope of the remediation systems, since
they were able to monitor for contamination over an extended area, and to
expand and adjust when there was credible data evidencing the presence of
additional contamination in need of treatment.
New
Mexico v. General Elec. Co.
§
Government: Revenue from Pease Development Authority was
classified for purposes of city's equalized valuation.
Revenue
received by a city from the Pease Development Authority (PDA) airport
district for police services other than security was payment in lieu of
taxes (PILOT) that was includable in the calculation of the city's total
equalized valuation. Revenue the city received to provide other municipal
services to the airport district was a municipal services fees established
by contract, rather than a PILOT, and was not includable in the total
equalized valuation calculation. The distinction was based on whether the
city was statutorily obligated to provide the particular service for which
the PDA made payment.
In
re Appeal of City of Portsmouth
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Government: Annexation statute required property to be
adjacent to both municipal boundary and urban areas.
An
annexation statute which allowed annexation of land "adjacent, on at
least sixty percent (60%) of its external boundary, to any combination of
the municipal boundary and the boundary of an area or areas developed for
urban purposes" required the annexed land to be both adjacent to the
municipal boundary and adjacent to areas developed for urban purposes, and
did not allow the use of only one boundary in the equation. The use of the
words "any combination" required such an interpretation. As a
result, two areas which were proposed for annexation and which were
adjacent to urban areas but which were not adjacent to the municipal
boundary line could not be annexed under the statute. The issue was one of
first impression.
Carolina
Power & Light Co. v. City of Asheville
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Judicial Administration: A magistrate's inflated salary could
be reduced by the county.
A county
reduced the supplemental salary paid to the chief magistrate after the
county attorney opined that the amount was incorrect due to compounding of
cost of living increases. The incorrect salary could be reduced to the
correct amount without violating constitutional prohibition on reduction of
salary during her term of office.
Maddox
v. Hayes
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Criminal Justice: Defendant was entitled to post-conviction
relief on same grounds for which co-defendant was granted relief.
A
defendant and co-defendant who were both arrested at the same time for drug
and conspiracy offenses following the execution of a search warrant, and
who were tried jointly and convicted of the same offenses, were identically
situated, and therefore, the defendant was entitled to post-conviction
relief based on a challenge to the legality of the search after the
co-defendant successfully obtained relief on those same grounds on her
petition for leave to appeal, despite that the defendant's challenge to the
legality of the search was raised and rejected on direct appeal.
Com.
v. Cruz
§
Government: Governor could be compelled by subpoena to testify
before impeachment committee.
The
Supreme Court of Connecticut has held, in an expedited appeal, that the
state's governor was not categorically immune, under the separation of
powers provision of the state constitution, from compelled testimony
pursuant to a subpoena issued by the select committee of inquiry charged
with determining whether sufficient grounds existed for the governor's
impeachment. Further, the court held that the subpoena at issue was not
inconsistent with the separation of powers provision of the state
constitution.
Office
of Governor v. Select Committee of Inquiry
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Health: Patient could not establish claim for professional
negligence against doctor who had affair with his wife.
Under Pennsylvania
law, a patient could not establish a claim for professional negligence
against his general practitioner who had an adulterous relationship with
the patient's wife, who was also under the medical care of the general
practitioner. The general practitioner's duty of care did not prohibit an
extramarital affair with the patient's spouse. This was an issue of first
impression.
Long
v. Ostroff
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Legal Services: Client's Sixth Amendment rights did not
supersede attorney's disclosure obligation.
The Rule
of Professional Conduct requiring a lawyer to inform the court about a
material fact when he or she has knowledge that, without such information,
the court will be misled required defense attorney to disclose to municipal
court that two deaths had occurred and that indictable charges were also
pending against his client so that court would not be misled as to double
jeopardy implications of acceptance of client's guilty plea on motor
vehicle charges on the more serious pending charges. Neither the client's
Sixth Amendment rights, nor any other duty owed the client superseded the
attorney's disclosure obligation to the court.
In
re Seelig
§
Business Organizations: Limited liability company is citizen
of any state of which a member is a citizen.
The Court
of Appeals for the Eleventh Circuit has held, as a matter of first
impression in the Circuit, that, for purposes of diversity jurisdiction, a
limited liability company is a citizen of any state of which a member of
the company is a citizen.
Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C.
§
Labor and Employment: Application of zero tolerance drug
policy violated due process.
The
application of a county sheriff department's zero-tolerance drug-free
workplace policy, as the basis for discharging from employment a deputy
sheriff who had consumed Peruvian herbal tea which caused her to test
positive for the presence of cocaine metabolites in her urine, violated
substantive due process. Such application of the policy was not rationally
related to the legitimate governmental objective of providing and
maintaining a work environment free of the unlawful use of drugs or
controlled substances. The deputy sheriff had been assured by a Peruvian
physician that there was no cocaine in the tea. Thus, she had not known of
the tea's illegal contents.
Garrido
v. Cook County Sheriff's Merit Bd.
§
Labor and Employment: Female Wal-Mart employees were entitled
to class certification in their sex discrimination suit.
Female
Wal-Mart employees were generally entitled to class certification in their
sex discrimination suit. They satisfied the numerosity, commonality,
typicality, and adequacy requirements. Moreover, the proposed class was
manageable except with respect to a lost pay remedy for non-promotion
claims lacking objective documentation.
Dukes
v. Wal-Mart Stores, Inc.
News
§
First
Guantanamo Tribunal Formed
The US has announced
that it has formed a five-member military tribunal to try terror suspects
held at Guantanamo Bay with retired Colonel Peter Brownback to be presiding
the officer - or judge. With this the Guantanamo detainees can now
challenge their detention. Although no date has been fixed, but it is
expected that the first case would be heard by the end of this year.
§
Internet
Porn Law Barred By US Court
The US Supreme Court
has narrowly ruled that a law meant to protect children from online
pornography is probably an infringement of free speech. The law on this was
as such was passed in 1998 but never came into effect inspite of Bush
administration backing it. The majority said a lower court was right to
block it, as it may have violated the First Amendment of the US
Constitution on freedom of speech.
§
Leading
SA Referees To Face Bribery Charges
Top football referees
plus officials from newly-promoted Umtata Bush Bucks made brief court
appearances in South Africa in the last week as the police probe into
match-fixing continued. The match-fixing allegations come just weeks after
the country won the right to host the 2010 World Cup. Corrupt officials are
being charged in the magisterial districts in which the match-fixing is
alleged to have taken place.
§
Kenya
Divided Over Constitution Delay
The issue of the
president's powers is dividing the ruling coalition. There has been a mixed
reaction to the announcement by Kenya's leader that this week's deadline
for having a new constitution would be missed. This could lead Kenya to a
complete chaos. Mr Kibaki had promised to introduce a new constitution
within 100 days of coming to power in December 2002 but the deadline then
slipped to 30 June. The issue of whether to reduce presidential powers has
split the ruling Narc coalition.
§
Museveni
Gets Angry At Court Ruling
Uganda's leader
Museveni has angrily condemned a court ruling, which nullified a 2000
referendum, in which a return to multi-party politics was rejected. He said
that a referendum would be held to set out judicial powers. Under Uganda's
Movement system, parties are allowed to exist, but they are not allowed to
contest elections. Mr Museveni said that the judgement meant that all
government acts since 2000 were null and void.
§
Rwanda
Expands Genocide Courts
Community courts
trying those responsible for Rwanda's genocide are to be established
nationwide from 2005. President Paul Kagame said the system which will put tens
of thousands of suspects on trial in the villages where they allegedly
committed their crimes. Mr Kagame warned opponents of the courts not to try
to sabotage them as some of them have tried to oppose the move. While the
gacaca, the system as described, hearings will deal with the majority of
suspects, those accused of more serious offences will still appear before
higher courts.
§
Microsoft's
Anti-Trust Case Settles
Microsoft has been
given preliminary approval to settle a class-action anti-trust case in
Arizona by giving away $105m (£57m) in computer vouchers. The software
giant had been accused of using its monopoly position to over charge for
its software. Under the deal businesses and homes who bought Microsoft
products between January 1996 and January 2002 will get vouchers of up to
$24 each. These will be valid for the products of any computer firm, not
just Microsoft. Under the settlement, which has been given preliminary
approval by an Arizona judge, the state's public schools will get 50% of any
unclaimed or unredeemed vouchers. Final approval of the deal is set for
December.
§
Ex-Fiji
PM Gives Court Evidence
Fiji's first ethnic
Indian Prime Minister, Mahendra Chaudhry, has given evidence at the trial
of the country's vice president. He was held hostage for almost two months.
Ratu Jope Seniloli is accused of treason and sedition. The charges relate
to his alleged role in the ousting of Mr Chaudhry and Fiji's elected
government in May 2000. The former prime minister told the High Court in
the capital Suva how he was handcuffed and dragged across the floor.
§
Court
Requested To Drop Cresson Case
A Belgian court has
been asked to drop all charges against former French Prime Minister Edith
Cresson, because of lack of evidence to support the case. Ms Cresson,
heading education and research in the EU executive, was at the centre of
the allegations that forced it to resign. The charges relate to a fraud
scandal that brought down the entire European Commission five years ago.
§
Court
Supports Turkish Headscarf Ban
Turkish state
universities have the right to ban Muslim headscarves, the European Court
of Human Rights in Strasbourg has ruled. The Court rejected an appeal by a
Turkish student who said the ban - and her subsequent exclusion from class
- violated her freedom of religion. It is expected that the decision could
have implications for other countries.
§
Rape
Case Failure Targeted By Lawyers
New rules to improve
the way rape cases are handled are being launched by the Crown Prosecution
Service. Under the new rules specialist barristers will handle cases in
court. The rules come after Home Office analysis of prosecutions revealed
wide variations in conviction rates across police force areas in England
and Wales. A network of specialist prosecutors, which will include only the
most senior barristers whose performance will be closely monitored, has
been set up. For dropping a case the consent of two prosecutors will be
needed.
§
Labour
Party To Impose Smoking Ban
Labour is considering introducing a ban on smoking in
public places if they win the next election. According to draft manifesto
policy documents obtained by the Guardian the ban is being discussed to
protect the health of children and young people. The report comes as the
British Medical Association (BMA) called for such a ban to be introduced
across the UK.
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