Wasserman's Appellate Summaries
October 3, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
People v. Lawrence
Case No. S070271
California Supreme Court
ORDER-CRIMINAL-MULTIPLE OFFENSES-SAME OPERATIVE FACTS
Modification of opinion which appears at 24 Cal.4th 219, not effecting the judgment.
*Estate Of Powell/Parker v. William Powell
Case No. CO32008
California Court of Appeal, Third District
(Certified for publication with the exception of parts III and IV.)
PROBATE-CONVERSION OF COMMUNITY PROPERTY IN JOINT TRUST TO SEPARATE PROPERTY AT TIME OF DEATH OF ONE TRUSTOR-POWER OF REVOCATION OF SURVIVING TRUSTOR LIMITED TO ONE HALF OF ASSETS OF TRUST AFTER DEATH OF ONE JOINT TRUSTOR
Myrtle and William owned real property prior to their marriage, which was later sold, and the proceeds used to purchase or improve real property occupied by the couple during the marriage. Both spouses worked during the marriage. At one point, William received a personal injury award which he used for improvements o the couple’s real property. William retired in the mid-1970’s; Myrtle in the early 1980’s. In 1991 they created a trust which permitted revocation at any time during the lifetime of either Trustor. The trust assets are listed in an attached schedule A. On the same day the trust went into effect, Myrtle executed a will leaving all of her property to the trustee of the 1991 trust to be held, managed, and distributed in accordance with the provisions contained therein. A year after Myrtle died William executed a revocation of the trust. Parker was appointed executor of Myrtle's will and filed suit alleging there was an oral agreement that the trust would become irrevocable upon the death of either spouse. The trial court held that William’s revocation of the trust was effective only as to his half of the community assets.
HELD: First the Court pointed out that since Parker had not appealed, he cannot seek affirmative relief. A 1994 amendment to the Probate Code provided that if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor, with one specific exception. The exception provides revocation of a joint trust by one spouse is effective as to all community property in the trust. As to other property in the trust, revocation is effective only as to the revoking party’s share of other property. Trust assets, which were community property of the trustors, were transmuted to separate property upon decedent’s death. Therefore, husband’s revocation of the trust resulted in one-half of the trust assets being returned to husband and the other half being disposed of according to decedent’s will. The unrecorded trust instrument was sufficient as between the trustors to convert joint tenancy property assigned to the trust into community property. Affirmed.
Simkins v. NevadaCare
Case No. 99-16844
U.S. Court of Appeals for the Ninth Circuit
INSURANCE-LIMITATION OF COVERAGE TO SPECIFIC IDENTIFIED ORGAN TRANSPLANTS-STEM CELL RESCUE PROCEDURE NOT SUBJECT TO TRANSPLANT EXCLUSION
Simkins had health insurance through her employer M&K. In 1996, Simkins' stage I breast cancer was initially successfully treated with radiation therapy. In late 1997, M&K changed health care providers, contracting with NevadaCare. Simkins enrolled as a participant/beneficiary of the Plan in January 1998. The new Plan had a limitation on what organ transplants would be covered and a catchall exclusion, which excludes any services or supplies not specifically listed as covered benefits. Shortly after enrolling in the new coverage Simkins was diagnosed with breast, lung and liver cancers. The recommended treatment was for high dose chemotherapy with peripheral stem cell rescue. NevadaCare denied coverage, based on the stem cell procedure being a form of transplant. Simkins sued. Summary judgment was for NevadaCare.
HELD: The district court erred in not interpreting the Plan's terms from the perspective of an average person. A person of average intelligence and experience would interpret the terms of the Plan to include coverage for HDC/PSCR. Reversed and remanded.
United States v. Juvenile (RRA-A)
Case No. 98-50368
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-JUVENILE-ARREST AT BORDER CROSSING-DELEGATION OF DUTY TO TIMELY NOTIFY CONSULATE OF JUVENILE CUSTODY-PROBABLE CAUSE FOR ARREST-REQUIREMENT FOR IMMEDIATE ADVISE OF LEGAL RIGHTS-PREJUDICIAL EFFECT OF ERRORS
RRA-A, a juvenile, was a passenger in a vehicle in which 80 pounds of marijuana was recovered during a border search. RRA-A's parents could not be located and RRA-A was handcuffed to a bench for 4 hours. She was given, and waived, her Miranda rights in Spanish and then was questioned for 30-40 minutes, until she admitted her involvement in the smuggling. The Mexican Consulate was contacted by a secretary for the arresting officer, who convinced RRA-A to give them a telephone number where her parents could be contacted. Two days after her arrest RRA-A was arraigned. Her motion to dismiss, on the ground of improper certification pursuant to the Juvenile Delinquency Act was denied. She was convicted of juvenile delinquency and for conspiring to knowingly and intentionally import and attempt to import marijuana.
HELD: Although frisking RRA-A in a security office certainly constituted a detention, the government's actions did not rise to the level of an arrest until she was handcuffed. The district court properly determined the time of arrest as when RRA-A was handcuffed. RRA-A, rather than being a mere passenger, changed her behavior in a potentially distracting way at the very moment when the border inspector was likely to discover the unusual bulge in the seat. The arrest did not rely upon RRA-A's mere propinquity to the others in the vehicle independently suspected of criminal activity. There were sufficient facts for probable cause. The Juvenile Delinquency Act requires that the arresting officer immediately advise the juvenile of his legal rights, in language comprehensive to a juvenile. RRA-A was in custody for four hours prior to being read her rights. A four-hour delay does not qualify as "immediately." The totality of circumstances thus suggests that her waiver of Miranda rights was knowing and voluntary. The arresting officer violated the JD Act by double delegating the duty to notify the juvenile's parents, or contact the Consulate in the case of a foreign juvenile. The arresting officer is required to make the notification. Additionally the notification was not made in a timely manner. The violations here are not egregious enough to constitute due process violations, but the errors were prejudicial and the confession should have been suppressed. Reversed and remanded.
United States v. Garcia-Martinez
Case No. 99-50546
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-ALIEN FOUND IN COUNTRY AFTER PREVIOUS DEPORTATION-DUE PROCESS OF PRIOR EXPEDITED DEPORTATION-ABSENCE OF PREJUDICE
Garcia-Martinez pleaded guilty to being a deported alien found in the United States. His previously deportation was after Garcia was served with a Notice of Intent to Issue a Final Administrative Removal Order in the prior deportation proceeding. Garcia signed and dated the Notice of Intent on the same day it was served. He also signed the "I do not wish to contest" portion of the Notice of Intent, admitting the charges that he was deportable and that he was ineligible for any relief from removal. Ten days later, the INS removed Garcia from the United States to Mexico. His motion to dismiss was denied.
HELD: Garcia can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. Under the expedited removal procedure if, as here, the alien concedes deportability, a deciding Service officer shall issue and cause to be served upon the alien a Final Administrative Removal Order that states the reasons for the deportation decision. The contention that because the immigration judge is under the supervision of Immigration and Naturalization Service officers who perform prosecuting and investigative functions, due process may be violated, has been rejected in the context of a full deportation hearing. It was also rejected for this expedited deportation process. Garcia is also unable to demonstrate actual or presumed prejudice. Affirmed.
Plumber, Steamfitter & Shipfitter Industry Pension Plan v. Siemens Building Technologies
Case No. 99-35758
U.S. Court of Appeals for the Ninth Circuit
LABOR-SCOPE OF AUDIT OF COMPANY BENEFIT PAYMENTS RECORDS UNDER COLLECTIVE BARGAINING AGREEMENT
Siemens is a nationwide builder. It has a national Collective Bargaining Agreement relating to employee benefit plans. The national CBA allows an audit of Siemens's records to ensure compliance with the contribution terms. Siemens also employs non union persons with computer skills needed in today's complex commercial building structures. While doing an audit Siemens concluded the focus of the audit was the non union computer trained personnel and the purpose of the audit was to assist in union organization of them. Siemens refused access to certain records. The Union benefit trust sued. The Union prevailed in the suit.
HELD: An audit request is illegitimate if it is in fact an effort to expand plan coverage beyond the class defined in the plans' terms or to acquire information about the employers to advance union goals. The factual finding that Siemens had not shown that the audit was for an improper purpose is not clearly erroneous and will not be disturbed on appeal. The trial court did not abuse its discretion under ERISA in its award of attorney fees to the Union. Affirmed.
United States v. Mondragon
Case No. 99-30329
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-VIOLATION OF PLEA AGREEMENT BY COMMENTING ON PAST RECORD DURING SENTENCING HEARING
Under a plea agreement that the prosecution would not make a sentencing recommendation Mondragon pleaded guilty to one count of using a fraudulent social security number and one count of interstate transportation of stolen vehicles. In response to Mondragon's comment at sentencing that his criminal record was for petty crimes the prosecution pointed out, over objection, the nature and extent of his criminal history. Mondragon was sentenced to the upper range of the sentencing guidelines. His motion to withdraw his plea for violation of the plea agreement was denied.
HELD: When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. A plea agreement is a contract; the government is held to the literal terms of the agreement. In this case the prosecution did not provide the district judge with any information which he did not already have before him. What the prosecutor did was to make certain that there was no misconstruction of the history. The comments could have been made for only one purpose: to influence the district court to impose a harsher sentence than that suggested by Mondragon's counsel. The comments were a breach of the plea agreement. Sentence vacated and remanded.
United States v. Juvenile (WJB)
Case No. 00-30021
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-JUVENILE-DUE PROCESS-EQUAL PROTECTION-MANDATORY TRANSFER PROVISION TO ADULT STATUS
WJB, a juvenile Native American, was transferred to adult status under the mandatory transfer provision of the U.S. Code. At the age of sixteen WJB was adjudicated a juvenile delinquent for an assault resulting in serious bodily injury, committed within "Indian country" which would be an assault if committed by an adult. Within a year he was charged with an act of juvenile delinquency within "Indian country," an offense that would be second degree murder if committed by an adult.
HELD: WJB was not indicted, nor was he afforded a jury trial. He contends that by predicating his transfer to adult status upon such adjudication, the statute deprives him of due process and of equal protection. There is no constitutional right to be tried as a juvenile, nor does the Constitution require that juvenile proceedings be by indictment or jury trial. If a prior juvenile adjudication could not constitutionally serve as a basis for trying a juvenile as an adult, the only way that Congress could require a juvenile involved in a violent offense to be tried as an adult would be to subject first-time violent offenders to the adult system, for there could never be an underlying prior juvenile offense. There is no due process or equal protection violation. Affirmed.
Snake River Valley Electric Association v. PacifiCorp/State Of Idaho
Case No. 99-35204
U.S. Court of Appeals for the Ninth Circuit
ANTITRUST-LIMITATION ON STATE STATUTE IMMUNIZING FROM ANTI TRUST SCRUTINY-GRANT OF IMMUNITY
The Snake River Valley Electric Association challenges PacifiCorp's refusal to allow it to "wheel"3 and supply power to PacifiCorp's customers through PacifiCorp's electric transmission facilities. Its complaint alleges violation of the Sherman Antitrust Act, and the Clayton Act. Summary judgment was for PacifiCorp, on the ground that the state Electric Supplier Stabilization Act expressly authorizes PacifiCorp's refusal, and the state action immunity doctrine bars SRVEA from recovering under the federal anti-trust statutes.
HELD: A state may not thwart the national policy in favor of competition by casting a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement. To be immune from anti trust review the challenged restraint must be: (1) clearly articulated; and, (2) actively supervised by the state. The ESSA clearly expresses a policy to displace competition among electrical suppliers so that the first prong of the test is satisfied. The ESSA is not sufficiently self-policing to satisfy the second requirement, nor does the state actually exercise sufficient control to satisfy the active supervision requirement. The statute simply allows private parties to decide under what circumstances competition will be allowed. There exists no reference to state regulation. Reversed and remanded.
Charles v. Hickman
Case No. 99-17063
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-COLLATERAL ESTOPPEL-EVIDENCE OF FORMER OFFENSE FOR WHICH DEFENDANT HAS BEEN ACQUITTED-LOWER STANDARD OF PROOF OF FORMER OFFENSE
Charles is currently serving a life sentence without the possibility of parole after being convicted in 1983 of first-degree murder with special circumstances. The special circumstances were killing a person, Mitchell who testified against him. At his trial evidence was admitted of Charles' acquittal of another charge of stabbing another person, Benton for testifying against him. The issue in that case was whether the stabbing was retaliatory or whether it was in self-defense.
HELD: Evidence that Charles stabbed Bonton in retaliation for Bonton's having snitched on him regarding the 1980 robbery was relevant to show that Charles shot Mitchell, not in self-defense, but rather in retaliation for Mitchell's also having snitched on him regarding the robbery. Both the California Evidence Code and the Federal Rule of Evidence permit introduction of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity), other than his or her disposition to commit such an act. Such evidence can be proved by a preponderance of the evidence. Because the issue of Charles' motive in the Bonton stabbing was governed by a lower standard of proof in the subsequent murder trial than in the original stabbing trial, the government was not precluded from relitigating the issue. The evidence was not barred by the collateral estoppel component of the Double Jeopardy Clause.
Vickers v. United States/Immigration And Naturalization Service
Case No. 99-55976
U.S. Court of Appeals for the Ninth Circuit
TORTS-FEDERAL TORT CLAIMS ACT-EXCEPTIONS FROM LIABILITY-DISCRETIONARY ACTS-MANDATORY ACTS
Kendalla, a detention enforcement officer with the INS shot and seriously injured Miriam Vickers, another INS employee and his former wife, with his service issued revolver. Ms. Vickers filed this action under the Federal Tort Claims Act, claiming negligent supervising, hiring and retaining Mr. Kendalla as a detention officer entitled to carry a service-issued firearm. Summary judgment was for the INS, on the grounds of discretionary act by the INS and that it was not the legal cause of the injuries.
HELD: The Federal Torts Claims Act is a limited waiver of the United States' traditional sovereign immunity, authorizing certain civil tort suits against the government for monetary damages. Excepted from liability is an any act or omission of an employee of the Government, based upon the exercise or performance or the failure to exercise or perform a discretionary function. Decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield. Under the FTCA negligence in performing discretionary functions is not actionable. The failure of investigators to report prior misuse of the firearm was not a discretionary act. The INS has not, at the summary judgment stage, met its burden of demonstrating that the discretionary function exception to the FTCA barred Ms. Vickers' claim. The criminal or negligent acts of a third party do not break the causal link between the defendant's conduct and the alleged injuries, if the defendant's conduct created or increased the risk of such acts. A reasonable trier of fact could also conclude that the failure to properly pursue the investigation of a prior discharge in anger of the revolver, which might have resulted in removal of the weapon, was the cause of Ms. Vickers injury. This cannot be resolved at the summary judgment stage. Affirmed and reversed in part and remanded.
Bugenig v. Hoopla Valley Tribe
Case No. 99-15654
U.S. Court of Appeals for the Ninth Circuit
OTHER-JURISDICTION OF INDIAN TRIBE OVER NONMEMBERS-EXPRESS DELEGATION OF POWER REQUIRED
The boundaries of the original Hoopa Indians reservation, were extended by executive order in 1891. The expanded reservation was occupied jointly by the Hoopa Indians and a group of non-Hoopa Indians. In 1988 the Hoopa-Yurok Settlement Act sought to settle the resulting disputes among the Hoopa and non Hoopa's. Every other summer, the Tribe holds its well-known White Deerskin Dance, a ten-day dance dedicated to world renewal. The dance is a public event imbued with cultural, social, and religious significance for the Tribe. The dance, which is accompanied by feasting and celebration, takes place at the sacred White Deerskin Dance Site. The Tribe imposed a non logging zone for a half-mile around the Site and the trail leading to it. Bugenig purchased in fee simple forty acres of land located within the Reservation's external boundaries and the buffer zone. Bugenig's request for a hauling permit to transport harvested timber on a tribal road running over reservation land was denied. When Bugenig received a logging permit she began harvesting timber. The tribe sued in Tribal Court. The Tribal Court permanently enjoined Bugenig from harvesting timber. Bugenig sued in federal court. The district court dismissed for lack of jurisdiction.
HELD: Nothing in the Settlement Act itself explicitly confers upon the Tribe jurisdiction to regulate nonmembers. Tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and cannot survive without express congressional delegation. It is appropriate to adopt in this context a clear statement rule: Congress can make such delegations of power over nonmembers, but because of the presumption against tribal jurisdiction over nonmembers the delegation must truly be express. The Court also found there was no inherent, or internal regulation exception. Reversed and remanded.
*Change in law, interesting case, or just watch out!
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