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Law digest – 3/21/13


Constitutional Law, Ex Post Facto: The retroactive application of the sex offender registration statute to defendant, convicted in 2005 for a sex offense committed in 1984, violated the prohibition against ex post facto laws because, while ostensibly “civil” or “regulatory,” it effectively imposed upon defendant an additional criminal sanction for the crime. Doe v. Department of Public Safety and Correctional Services, No. 125, Sept. Term, 2011. RecordFax No. 13-0304-20

Negligence, Federal Employers Liability Act: Negligence action brought by railroad employee against his employer under the Federal Employers Liability Act alleging improper use of ballast was not precluded by the Federal Railroad Safety Act because defendant railroad failed to prove that employee’s claim was based on ballast performing a track-support function. CSX Transportation, Inc. v. Pitts, No. 34, Sept. Term, 2012. RecordFax No. 13-0228-20

Professional Responsibility, Disbarment: Where attorney engaged in a pattern of intentionally dishonest conduct, involving misrepresentations to the courts, disbarment was the appropriate sanction. Attorney Grievance Commission of Maryland v. Page, Misc. Docket AG No. 70, Sept. Term, 2011. RecordFax No. 13-0305-20


Administrative Law, County budget system: By failing to include sufficient funds to implement a collective bargaining agreement in proposed budget for Fiscal Year 2012 to county council and instead submitting final offer that had been presented to agreement arbitrator, county executive committed prohibited labor practice in violation of provision in county charter requiring county executive to submit to county council proposed capital and operating budgets and any other information “as may be prescribed by law” because, pursuant to county code, arbitration award issued by arbitrator became integrated into parties’ final agreement and was therefore “prescribed by law.” Fraternal Order of Police v. Montgomery County Executive, No. 0722, Sept. Term, 2011. RecordFax No. 13-0304-01

Contract Law, Unconscionability: Circuit court did not err in denying motion to set aside separation agreements between husband and wife on basis of unconscionability because: terms of agreements were equitable; husband, who was unrepresented by counsel, did not have confidential relationship with wife’s attorney and wife’s attorney, with whom husband had no contact, did not unduly influence husband; husband could not have reasonably relied on wife’s attorney to act for his benefit; and husband was aware of parties’ respective financial situations and bargained for terms contained in agreements. Li v. Lee, No. 2622, Sept. Term, 2011. RecordFax No. 13-0304-00

Criminal Procedure, Collateral estoppels: Where the State was not a party to the protective order case, it had no prior opportunity to litigate whether the assault took place and thus could not be estopped from litigating that fact in the subsequent criminal case. Tubaya v. State, No. 1914, Sept. Term, 2011. RecordFax No. 13-0301-00

Negligence, Medical malpractice: Where, under the circumstances, nephrology and urology are “related specialties,” plaintiff’s expert, a board certified nephrologist, was qualified to testify that defendants, board certified urologists, breached the standard of care. Nance v. Gordon, No. 1574, September Term, 2011. RecordFax No. 13-0301-00

Negligence, Personal liability: There was no evidence to support a finding that defendant, who was not involved in the day to day operations of the property, was an operator pursuant to the Housing Code, where it was undisputed that the property managing company, not defendant, entered into the agreement with the owner to manage the property and it was the property manager who was responsible for making the necessary repairs. Toliver V. Waicker, No. 2245, Sept. Term, 2011. RecordFax No. 13-0301-01


Bankruptcy Law, New value defense: Court properly awarded summary judgment against bankruptcy trustee based on debtor’s transfer of $1.375 million to insurance company within 90 days of filing of bankruptcy petition for bankruptcy, because insurance company offered uncontradicted evidence that debtor received new value in excess of $1.375 million, and, therefore, “new value” defense to trustee’s claim of a preferential transfer applied. In re ESA Environmental Specialists, Inc., No. 11-2150. RecordFax No. 13-0313-60

Constitutional Law, Sovereign immunity: Principle of sovereign immunity barred South Carolina municipalities from assessing municipal business license taxes based on total flood insurance premiums collected in the particular municipality by insurance companies under arrangement with Federal Emergency Management Agency, because flood insurance premiums were federal property that could not be taxed; companies, in their operation of national flood insurance program, were federal instrumentalities so closely connected with the federal government that they were immune from taxation; and federal government did not consent to the tax. Municipal Association of South Carolina v. USAA General Indemnity Company, No. 11-2220. RecordFax No. 13-0301-61

Criminal Law, Conspiracy: Defendant, who, with assistance of his girlfriend, attempted to fake his death by jumping off a boat while fishing with his brother with the intent that the brother would place a distress call with U.S. Coast Guard, was properly convicted of conspiring with his girlfriend to cause a false distress call to be communicated to U.S. Coast Guard and of underlying substantive offense of causing a false distress call to be sent to the U.S. Coast Guard because, even though girlfriend was not aware that U.S. Coast Guard would receive or respond to distress call, object crime did not require specific intent to violate federal law and, therefore, conspiracy statute likewise did not require such specific intent. U.S. v. Deffenbaugh, No. 11-4951. RecordFax No. 13-0228-60

Criminal Procedure, Newly discovered evidence: Following defendant’s conviction of carjacking and related offenses, district court erred in denying defendant’s motion for a new trial based on newly discovered evidence that alternate suspect had dreadlocks at time of attack, because case hinged on closely-contested issue of identity of assailant, whom victim identified as having dreadlocks, and newly discovered evidence was therefore material. U.S. v. Moore, No. 11-5095. RecordFax No. 13-0301-62

Criminal Procedure, Waiver of counsel: District court’s decision to grant defendant’s motion to proceed pro se after court found defendant competent to stand trial was proper, since a court may constitutionally permit a criminal defendant to represent himself so long as he is competent to stand trial. U.S. v. Bernard, No. 11-4054. RecordFax No. 13-0228-61