September 2004 E-Newsletter- San Diego County Public Law Library

Come to the Witkin Awards Dinner 2004 Don't miss your chance to attend the best networking event of the year in the legal community! The 2004 Bernard E. Witkin, Esq., Awards Dinner is set for September 23, 2004, at the Sheraton San Diego Hotel & Marina East Tower, 1380 Harbor Island Drive, San Diego, CA 92101. The Cocktail Reception will begin at 5:00 p.m., and the Dinner and Awards Program will begin at 6:00 p.m. This year's winners are Alan R. Perry, Esq., Judge James R. Milliken, and Sister Sally Furay. The Master of Ceremonies will be Judith Copeland. Ticket prices are $90.00 per person. Sponsored tables of eight may be purchased for $1,000. Corporate donors and table sponsors will receive ads in the program guide and are mentioned in our press releases. Additional information regarding ticket sales or sponsorship is available at (619) 531-3904 or at witkindinner@sdcpll.org. The Bernard E. Witkin Award dinner is the San Diego County Law Library Justice Foundation's annual fund-raising event. Each year the Foundation uses the event to honor members of the San Diego legal community for civic leadership and excellence in the teaching, practice, enactment or adjudication of the law. Past winners include: Justice Judith L. Haller, Janice P. Brown, Esq., Professor Lester B. Snyder, Alec Cory, Retired Judge Robert O'Neill, Professor Katharine Rosenberry, Judith Copeland, Professor Janeen Kerper, Judge J. Lawrence Irving, John Davies, Pat Crowell, Virginia Nelson, Justice Howard Wiener, Marc Adelman, Judge William Yale, Professor Hugh Friedman, Anne Parode, Dean Donald Weckstein, and Harvey Levine. Funds raised at the event are used to purchase legal materials for the San Diego County Public Law Library and its users: both practicing attorneys and members of the general public who need basic legal information but cannot afford to hire an attorney. For many people, books purchased with the help of your donations are the only source they have for legal advice or assistance on critical legal problems.

Library Closed Sept. 6th- Labor Day All locations of the San Diego County Public Law Library will be closed Monday, Sept. 6th in honor of Labor Day. The Main location of the Law Library will be open for its regular hours on Saturday, Sept. 4th.

Supreme Court Roundup Yee-haw! The Supreme Court recently wrapped up so we rounded up some of the most interesting cases from this term. The cases themselves are linked to .pdfs but if you want just a listing of all the opinions from this term, go here. Constitutional Law Cases Tennessee v. Lane, 124 S. Ct. 1978- individuals with disabilities may sue states for monetary damages under title II of the ADA. Ashcroft v. ACLU, 124 S. Ct. 2783- law designed to punish pornographers who sell pictures to minors on the Web is not probably constitutional.- remanded to a lower court to give gov't a chance to prove that the law doesn't go too far. City of Littleton v. Z. J. Gifts, 124 S. Ct. 2219- a Littleton, CO ordinance controlling the licensing of adult businesses is constitutional even though it does not facially provide for a prompt judicial determination of the facts. Elk Grove v. Newdow, 124 S. Ct. 2301- atheist suing over "under God" in pledge of allegiance did not have standing to sue because he didn't have custody of his daughter. [The Supremes dodged a bullet on that one, huh?] Locke v. Davey, 124 S. Ct. 1307- religious courses are properly excluded from a state's scholarship eligibility. Hibbs v. Winn, 124 S. Ct. 2276, says that federal courts can hear constitutional challenges to state taxes. Civil Rights Law: Jones v. R.R. Donnelly & Sons Co1 24 S. Ct. 1836 says that civil rights claims brought under 42 USC 1981 have a four year statute of limitation. Nelson v. Campbell, 124 S. Ct. 2117 says it is OK for death row inmates to file civil rights suits challenging the conditions of their imprisonment without violating federal laws that curtail repetitive habeas petitions. Criminal Law: Iowa v. Tovar, 124 S. Ct. 1379 says a trial judge isn't mandated by the 6th Amendment to warn a defendant representing himself that by waiving his right to counsel he can be overlooking a viable defense. Rasul v. Bush, 124 S. Ct. 2686 stated that Guantanamo Bay detainees can challenge their detention in U.S. courts. Hamdi v. Rumsfeld, 124 S. Ct. 2633 said U.S. citizens seized in a combat zone and identified as "enemy combatants" can challenge their detention. Baldwin v. Reese, 124 S. Ct. 1347 said a state prisoner cannot make a "fairly presented" federal claim in state court if the state court has to read beyond the prisoner's papers to find the claim. Banks v. Dretke, 124 S. Ct. 1256 said if police or prosecutors conceal significant exculpatory evidence, the state is responsible for setting the record straight. [wasn't there a Law & Order episode about this?] Beard v. Banks, 124 S. Ct. 2504 says new criminal procedure rule invalidating capital sentencing standards requiring juries to disregard mitigating factors not found unanimously is not retroactive. [whew- that's a mouthful!] Similarly, Schriro v. Summerlin, 124 S. Ct. 2519 says that a 2002 ruling that the death penalty had to be made by a jury, rather than a judge, doesn't apply retroactively. Blakely v. Washington, 124 S. Ct. 2531 said the Sixth Amendment doesn't allow judges to make factual findings that increase a sentence beyond the ordinary range for the crime. Thornton v. US, 124 S. Ct. 2127 allows police to search a car if they arrest someone standing outside the car. [So beware of whose car you stand next to!] However, if you are in your home, US v. Banks, 124 S. Ct. says that police with a search warrent only have to wait 20 seconds after a knock-and-announce to kick in your door and search your place. If you are arrested, Missouri v. Seibert, 124 S. Ct. 2601 warns police not to extract a confession from a suspect, then Mirandize them and get them to repeat the confession. And US v. Patane, 124 S. Ct. 2620 says that if a suspect tells you not to bother reading them their Miranda rights, then the suspect can't later complain they weren't read their rights. Speaking of police questioning, Yarborough v. Alvarado, 124 S. Ct. 2140 says that there is no special treatment required when questioning a juvenile. Finally, US v. Flores-Montano, 124 S. Ct. 1582- border guards can remove, disassemble, and reassemble a vehicle's fuel tank with or without a reasonable suspicion of finding contraband. [Moral of the story- be nice to border guards.] Labor Law: Gen. Dyn. Land Sys. v. Cline, 124 S. Ct. 1236, says there is no such thing as reverse age discrimination. Raytheon v. Hernandez, 124 S. Ct. 513, says an employer's policy of not rehiring a former employee who was fired for drug use and went through a drug rehab program is OK as long as the policy is neutral and nondiscriminatory. Aetna Health Inc. v. Davila, 124 S. Ct. 2488 says that you can't use a state statute to sue your HMO for failure to pay for medical coverage. You must use section 502 of ERISA. On the other hand, Cent. Lab. Pension Fund v. Heinz, 123 S. Ct. 2230 says you can't use ERISA to terminate early retirement benefits already accrued by an employee. International Law: Olympic Airways v. Husain 124 S. Ct. 1221 says that an airline is responsible for the actions of a flight attendant who refused to reseat an asthmatic passenger, resulting in the in flight death of the passenger. [Flying the friendly skies, huh?] That wraps up the roundup for this term. If you want up-to-the-minute information about Supreme Court cases, try looking at a Supreme Court weblog ("blog"). SCOTUSBlog is a blog maintained by Goldstein & Howe, the nation's only firm devoted principally to trying cases in the Supreme Court and it has good analysis and information.

Update on Personal Injury Statute of Limitations A big puzzle for personal injury lawyers has been whether accidents that occurred during the two years before the effective date of the statute of limitations change are subject to the old one-year time limit or are entitled to the new two-year time limit. Mike Kaye, a law librarian at the Main location, has compiled the following information that may help you figure out which way the courts are going. Here's the problem: In 1992 the Legislature moved the personal injury statute of limitations out of CCP 340, put it into the new CCP 335.1, and increased the limitations period from one year to two years. Stats. 2002, ch. 448, sections 2 and 3 (S.B. 688). The new statute became effective on January 1, 2003. So how should the statute be interpreted? First Answer: Lapsed Claims Cannot be Revived- The first California appellate court to tackle that question concluded that the new time limit is not retroactive, except for victims of the 9/11 terrorist attack. (Krupnick v. Duke Energy Morro Bay (Feb. 2004) 115 Cal.App.4th 1026.) In Krupnick the one-year time limit of CCP 340 had already expired before the effective date of the new statute. At a minimum, the case holds that a lapsed claim cannot be revived in the absence of an express statement of legislative intent to resurrect dead claims. The case strongly implies that the new statute is not retroactive at all for any pre-2003 events (except the terrorist attack of 9/11, which the Legislature expressly provided for). But the facts of Krupnick did not involve a potential claim that was still unexpired on January 1, 2003, when the new law took effect. I think Krupnick is probably correct for all potential claims that arose in 2001. The one-year limitations period of former CCP 340 would have expired before the new two-year limitations period of CCP 335.1 went into effect. But it may be mistaken as to events that occurred in 2002. In the first place, anything that Krupnick implied about 2002 events would have been mere dicta, since the case dealt with an incident from 2001. It's harder to revive a dead claim than to extend the life of a pending claim that hasn't yet expired. In the second place, Krupnick overlooked extensive case law that gives unexpired claims the benefit of any enlargement of the limitations period. (See 3 Witkin, Cal. Procedure, 4th ed. 1996, Actions, section 431, p.539) At least one published federal case has made the same mistake as Krupnick. (Abreu v. Ramirez (C.D.Cal. 2003) 284 F.Supp.2d 1250, 1255-1256.) But now some other federal judges are starting to give claimants the benefit of the extended statute of limitations where the underlying claim arose in 2002 and had not yet lapsed when CCP 335.1 took effect. Tentative Second Answer: Unexpired Claims Get the Benefit of the Enlarged Time Limit- The first federal court to apply CCP 335.1 retroactively is unpublished and uncitable, but its reasoning is cogent. (See Jordan v. Herrera (C.D.Cal., Nov. 7, 2003, No. CV 03-03127-SVW) 2003 U.S. Dist. Lexis 25537.) A recently published U.S. district court case that reached the same result. The holding here is that CCP 335.1 applies retroactively to unexpired claims, giving the benefit of the two-year limitations period to claims that arose in 2002 and were therefore not already time-barred on January 1, 2003. (Thompson v. City of Shasta Lake (E.D.Cal. 2004) 314 F.Supp.2d 1017, 1023-1024.) The Thompson decision is citable but not controlling on matters of state law. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, section 943, pp. 984-985.) Still, I think it's persuasive, and it tracks the California authority mentioned in 3 Witkin, California Procedure, 4th ed. 1996) Actions, section 431, p. 539. Conclusion: The apparent conflict between the cases won't be resolved for awhile. But my prediction is that Krupnick will eventually be confined to incidents from 2001, and Thompson will set the standard for incidents that occurred in 2002.

September Cartoon This cartoon is one of Stu's Views, now in color! These are cartoons by a local lawyer, geared for lawyers. Stu is an entertainment lawyer here in San Diego who represents mostly visual arts creators. As he says in his bio on his home page, "Stu is the lawyer for cartoonists and the cartoonist for lawyers." See other cartoons by Stu at www.stus.com.

New Rule of Professional Conduct Adopted As of July 1, 2004, the Supreme Court of California has added a new rule dealing with attorney disclosure of client information to the Rules of Professional Conduct. Newly added Rule 3-100 says that notwithstanding the law of client confidentiality in the Business and Professions Code section 6068, "...an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual." The full decision and the CA's Supreme Court order is available here (in .pdf).

New Books- September 2004 Here is a list of some of our newest acquisitions. Please note that while some of these books are located only at our Main Library, books that circulate can be sent to our branches upon a request from the branch. Arizona Community Property Law, 3rd ed. by Thomas A. Jacobs, Thomson West, 2004. Available at Main. Business and Professions Code Section 17200 by William L. Stern, Rutter Group, 2003. Available at Main. California Class Actions Practice and Procedure, LexisNexis, 2003. Available at Main. The California Real Estate Primer: Principles of California Real Estate: Essentials for Broker and Salesperson License Examinations & for Buyers and Sellers of California Real Estate by Ray D. Westcott, J.A. Majors Co., 2002. Available at all locations. Fiance & Marriage Visas: A Couple's Guide to U.S. Immigration, 2nd ed. by Ilona M. Bray, Nolo Press 2004. Available at all locations. Friedman on Leases, 5th ed. by Milton R. Friedman, 2004. Available at Main. Impact of HIPAA on Estate & Trust Practice: Counseling, Drafting, and Litigating: Program Handbook, CEB, May/June 2004 2004. Available at Main. Jury Selection, by Harvey R. Levine, Rutter Group, 2004. Available at all locations. Web and Software Development: A Legal Guide, 4th ed. by Stephen Fishman. Nolo Press, 2004. Available at all locations.

September Legal Links Law schools in San Diego- Thinking about where to send your offspring to law school? Want to know how San Diego law schools stack up? This site, created by a graduate of the University of California, Berkeley School of Law (Boalt), says it exists to "provide you with the necessary information to successfully navigate you through the law school application process and find the ideal law school, so that your next three years can be as rewarding and enjoyable as possible." Road Trip USA- speaking of going back to school, remember road trips? Or maybe just pieces of the really good ones? If you want to hit the road and find some "small towns, funky attractions, roadside curiosities, and more -- that the interstates have left behind" drive by this site before you head out of town. Is Your City Sloshed?- This is an interesting article which analyzes DWI arrest rates, data on alcohol-related traffic deaths, and the CDC's database for the mortality rates for six categories of alcohol-related liver disease for the 101 largest US cities, including San Diego (we got a D). The good news is that we are not very stressed out according to the companion "How Stressed is your City" test. We got an A+ on that one. I wonder if there is a correlation between the two....

Reference Question of the Month- Citing Internet Sources Q: I am citing Internet sources in my legal brief. What is the correct way to cite them in California? A: First, let's address if and when you should use Internet citations. Most courts prefer that you cite to a printed source if it is available, unless the printed version is obscure or hard to find. Section (c) of Rule 313 of the California Rules of Court, dealing with Memorandum of Points and Authorities, says, "A case citation must include the official report volume and page number and year of decision. No other citations may be required." The standard in the legal field for citations is Harvard's publication A Uniform System of Citation, most commonly known as The Bluebook. However, in California, practitioners are required to use the California Style Manual for legal citation. The rule in California is that the URL information is placed in angled brackets (the ones found on the period and comma keys on the keyboard.) After that information, you put the date the web site was visited and the words "as of." Here is what it would look like (omit the space between the first bracket and the text- I had to add it to get the link to show up in this program): < http://www.sdcpll.org> as of Sept. 1, 2004 If the web address is in parenthesis, you use regular brackets to set the date apart. Like this: The Witkin Dinner is the primary fundraiser for the San Diego County Law Library (see < http://www.sdcpll.org> [as of Sept. 1, 2004].) One of the best articles I have found on this subject is called Written on the Wind. The author links to numerous legal citation sources and discusses the problem of an ever-changing World Wide Web and how to cite it. Remember, any time you cite an Internet address, it is best to make a physical print out of the web page for future reference. Web pages come and go and change constantly, so if you want to refer the court to a document as it appeared on a certain day, do yourself a favor and keep a printout of it in case the site disappears.

We hope you've enjoyed our newsletter. We're hard at work on the next edition. In the meantime, please visit us online at: http://www.sdcpll.org/. And come see us in person at one of our locations. For locations and hours please click here: http://www.sdcpll.org/location.htm. For more information contact: Amy Hale-Janeke ahale@sdcll.org Media Coordinator / Reference Librarian (619) 531-3900