Small firm lawyers may wish to reexamine their credit card arrangements. That is, if they don’t want to be left holding the bag on some deadbeat colleague’s charges.

The need to be precise about who will ultimately be responsible for paying what was driven home last week by the California Court Appeal in a case involving businessman David Kayatta and his erstwhile associates, Robert Francis and Walter Coulter.

Kayatta opened a business credit card account with American Express. As the primary cardmember, Kayatta authorized American Express to issue additional cards to Francis and Coulter.

Whatever business Kayatta had with Francis and Coulter apparently soured, but there was still the matter of a $265,000 in charges, interest and penalties on the American Express account.

Kayatta tried to wash his hands of the matter by claiming that he had paid off all his own charges.

Of course, American Express tried to remind Kayatta that there was pretty clear language in his cardmember agreement making him liable for charges made by supplemental cardholders like Francis and Coulter.

American Express forcefully made that point by suing in state court and obtaining a $265,000 judgment against Kayatta.

Kayatta tried to avoid the judgment by arguing on appeal that American Express breached a duty by not disclosing that Francis had had some prior dealings with the credit card company. In fact, American Express allegedly had obtained a default judgment against Francis.

As Kayatta saw it, American Express assumed the risk that Francis would not repay the charges made on Kayatta’s charge card account.

Of course, that argument was never going to fly.

Last Wednesday, the California Court of Appeal dispensed with Kayatta’s contention that the federal Truth In Lending Act or state consumer statutes imposed any duty on American Express to disclose the bad credit histories of additional cardholders authorized by a primary cardholder.

“We generally agree with Kayatta’s assertion that these statutes and regulations are ‘intended to allow the cardholder to make an informed decision as to his or her or its use of the card, as well as the potential obligations of allowing others either to use their card, or have an “additional card” issued on the same card account.’ …

“However, Kayatta points to no language in these statutes or regulations providing that American Express has a duty to disclose to the basic cardmember that it, or one of its affiliates, obtained a judgment against an additional cardmember. Thus, there is no specific statutory language imposing upon American Express such a duty of disclosure,” the court said.

With nothing in the consumer protection statutes to aid him, Kayatta was left at the mercy of the language in his cardmember agreement.

The court concluded: “Kayatta has not shown that American Express had a contractual obligation to inform him that its affiliate had obtained a judgment against Francis. Therefore, American Express was entitled to enforce the terms of the Business Agreement and to seek money damages from Kayatta to repay charges incurred by additional cardmembers.” (American Express Bank v. Kayatta)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

The Archdiocese of Milwaukee lost its latest bid to establish insurance coverage of negligent misrepresentation claims arising from allegations of sexual abuse committed by former priests.

“Because the representations made by the Archdiocese constitute ‘volitional acts,’ they cannot be considered ‘occurrences’ within the meaning of the [diocese's commercial general liability] policy,” the Wisconsin Court of Appeals ruled.

Last week’s decision addressed coverage disputes in 13 underlying lawsuits. In each of the lawsuits, the plaintiffs stated claims for negligent misrepresentation, alleging that the Archdiocese represented that children were safe in the presence of the priests despite church officials having knowledge of the priests’ histories of sexual abuse.

The church argued that its insurer, OneBeacon, had a duty to indemnify under an occurrence-based CGL policy. The policy defined an occurrence as an “accident” and the Archdiocese argued that coverage existed because it did not intend to harm the plaintiffs.

Two state trial courts ruled that the negligent misrepresentation claims against the Archdiocese were not covered under the OneBeacon policy.

Tuesday’s decision by the Wisconsin Court of Appeals affirms those rulings.

The court explained that “the focus for purposes of this appeal is not the ultimate injury the plaintiffs suffered, but rather the underlying acts of the Archdioceses that led to the plaintiffs’ injuries. … The underlying act that led to the plaintiffs’ injury, therefore, is the misrepresentation that the plaintiffs would be safe in the presence of the priests. The proper focus for determining coverage, then, is on the misrepresentations leading to the molestation.”

The court concluded that the “Archdiocese’s awareness of its priests’ histories of molestation and its non-disclosure to the plaintiffs ‘may [have been] prompted by negligence, [but] it is nevertheless devoid of any suggestion of accident.’”  (Doe v. Archdiocese of Milwaukee) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

What’s the appropriate remedy when the government gets caught red-handed listening in on attorney-client conversations?

One California judge decided that the dismissal of criminal charges is the only way to deter the government from such transgressions.

Yesterday, the California Court of Appeal decided that dismissal was too drastic a remedy.

The case involved five defendants who were charged with defrauding California’s Medicaid program in connection with their operation of a medical clinic.

State agents had seized thousands of medical records in a raid of the clinic and the defendants needed to review those documents in order to prepare a defense.

Prosecutors were concerned that evidence might be destroyed, so it was agreed that the defendants and their attorneys would only review the documents under the watchful eye of special agents from the California Department of Justice.

In October 2008, the clinic’s files were brought into a large conference room in a state office building in Burbank for the defendants’ perusal. Special agents were stationed around the perimeter of the room. The agents’ only job was to observe and ensure that there was no hanky panky regarding the documents, at least that’s what the defendants’ thought.

Prosecutors apparently had other plans. Knowing that certain of the defendants spoke Russian, the government made it a point that one of the special agents stationed in the room also spoke Russian.

And while the agents were supposed to be far enough away so that they couldn’t hear the hushed words between the defendants and their attorneys, apparently they managed to edge just close enough to listen in on portions of confidential attorney-client conversations.

What’s more, the agents later prepared a report of what they had heard, including a translation of what was said in Russian.

Naturally, the defendants cried foul when they later learned of the agents’ report and a miffed California magistrate ordered outright dismissal of the criminal case.

The California Court of Appeal, however, decided that this action amounted to “judicial overkill” and directed that the criminal complaint be reinstated.

The court said that “[e]xclusion of overheard communications and any derivative evidence flowing therefrom is the appropriate remedy. This should deter over-zealous law enforcement agents as there is nothing to be gained by such unlawful activity. At the same time, the Attorney General’s client, the People of the State of California, will not be stymied in their attempt to enforce criminal law and recoup public money allegedly ‘stolen’ by [the defendants].” (California v. Shrier)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Is there anything dicier than disability insurance?

You pay the premiums, hoping to buy some security. Then, when you actually need the benefit, the insurance company comes up with some loophole to deny coverage.

And if you just happen to succeed on a claim, there’s always the fear in the back of your mind that one day you’ll get that letter telling you that the insurer has come up with some excuse to stop payments.

That’s what happened to Jeffrey Boly. Boly is a tax attorney who lives in Multnomah County, Oregon. He turned 65 in 2007, as it turns out a key birthday in his fight for disability coverage against Paul Revere Life Insurance Company.

Boly suffers from sleep apnea, a disorder characterized by pauses in breathing or abnormally low breathing during sleep. The resulting hypoxia, or deprivation of oxygen to the body, sometimes results in permanent impairment.

Boly’s apnea went undiagnosed for years. As a result, he’s suffered permanent brain damage.

In the 80s, Boly first began experiencing abnormal daytime tiredness. A doctor ultimately diagnosed Boly’s sleep apnea, but the damage had been done and the daytime tiredness would not go away.

Because of his diminished work capacity, Boly applied for partial disability under a policy he purchased in 1983 from Paul Revere Life.

The insurer granted the claim and Boly started to receive benefits. All was well until 1996 when Boly started to notice diminished cognitive ability. A doctor related this problem back to the years when Boly’s sleep apnea went undiagnosed. As a result, Boly began receiving total disability under the Paul Revere Life policy.

But as Boly got older, he drew nearer to an important trigger in his insurance policy. The policy provides lifetime benefits for disability resulting from accidental injury, but benefits end at age 65 for disability resulting from disease or sickness.

Boly realized this could be a problem and just before turning 65 he requested that his disability be reclassified as resulting “from injury,” rather than “from sickness.”

The insurer wouldn’t go for it and predictably, when Boly turned 65, the company cut off his benefits on the ground that his cognitive impairment resulted from a disease: sleep apnea.

Boly sued for breach of contract but that lawsuit has gone nowhere. An Oregon trial court granted Paul Revere Life summary judgment. Last week, the Oregon Court of Appeals upheld that judgment.

The state court of appeals found that Boly’s brain damage “cannot plausibly be called accidental.”

The court said that this was the only conclusion because Boly’s “failure to breathe, and the undiagnosed existence of his sleep apnea, are not ‘events’ or ‘forces’ in the same sense as lightning (in the case of being struck) or gravity (in the case of falling into a hole).”

In explaining why Paul Revere Life had correctly interpreted its insurance contract in cutting off Boly’s benefits, the court said that “the typical purchaser of insurance, applying his or her common understanding, would regard [Boly's] disability as analogous to organ failure or damage that results from a disease that a person catches by (involuntarily) coming into contact with a contaminated surface or inhaling a fellow airplane passenger’s sneezed virus.  Such disabilities do not result from accidental bodily injury, as those terms are used in normal discourse.” (Boly v. Paul Revere Life Insurance) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

New York’s highest court last week issued a ruling that apparently dooms a bid by an attorney’s widow to upset her husband’s scheme to provide investors $56 million in life insurance benefits.

According to court records, Arthur Kramer, a prominent New York attorney, put together an investment arrangement involving “stranger-owned life insurance” before his death.

Arthur’s precise goals are unclear, but what we do know is that Arthur established two insurance trusts naming his adult children as beneficiaries.

Transamerica Occidental Life Insurance Co. funded the first trust with life insurance policies on Arthur having a total death benefit of approximately $18.2 million. Phoenix Life Insurance and Lincoln Life & Annuity of New York funded the second trust with policies having a death benefit totaling $38 million.

Once the trusts were fully funded, Arthur’s children assigned their interests to third-party investors.

Following Arthur’s death in 2008, his wife, Alice, thought that the $56 million in death benefits should go to her instead of the investors. So she refused to hand over copies of Arthur’s death certificate to those holding beneficial interests in the policies.

Alice also sued in federal court to make it perfectly clear that the $56 million was hers.

According to Alice, Arthur’s investment scheme was contrary to New York law. In particular, she argued that Arthur’s life insurance policies violated New York’s insurable interest rule because her husband obtained them without the intent of providing insurance for himself or anyone with an insurable interest in his life.

Finding New York law unclear on this issue, the 2nd Circuit certified the matter to the New York Court of Appeals.

The New York high court decided that nothing in the state’s insurance code prohibits the assignment of validly issued life insurance policies to investors, even if that was the intent all along.

The court explained that, under N.Y. Insurance Law §3205(b)(1), it is “plain that a [life insurance] contract ‘so procured or effectuated’ may be ‘immediate[ly] transfer[ed] or assign[ed]‘ The provision does not require the assignee to have an insurable interest and, given the insured’s power to name any beneficiary, such restriction on assignment would serve no purpose. …

“This freedom of assignment is not limited by §3205(b)(2), which addresses procurement of an insurance policy on another’s life, ‘either directly or by assignment,’ because §3205 (b)(2) requires an insurable interest only ‘at the time when such contract is made,’ that is, when such insurance is initially procured.” (Kramer v. Phoenix Life Insurance) 

That this result completely eviscerates the insurable interest rule was of no moment to the court. The plain letter of the statute prevailed.

The common law insurable interest rule was designed to discourage the understandably pernicious practice of strangers wagering on someone’s life. Under the rule, a life insurance beneficiary must be related to the decedent by blood or by law.

The decision by the New York Court of Appeals to recognize assignment without limit of beneficial interests in life insurance would appear to make the insurable interest rule largely a dead letter.

At least that’s the way Associate Judge Robert S. Smith saw it in his dissent.

Judge Smith contended that “this rule of free assignability has always had an exception — … where the insured, at the moment he acquires the policy, is in substance acting for a third party who wants to bet on the insured’s death.”

The judge explained that under New York common law “the purchasers of stranger-originated life insurance could not prevail in a case like this: the law would look through the form of the transaction, and ‘[t]he intention of the parties procuring the policy would determine its character.’ …

“It hardly seems open to doubt, on the facts before us, that the intention of the purchasers here was to bet on Arthur Kramer’s death, and that Kramer’s intention was to be compensated for helping them do so.”

- Pat Murphy

patrick.murphy@lawyersusaonline.com

That improper juror communications would call a verdict into question is not that uncommon.

But you tend to sit up and take notice when a felon is granted a new trial because certain facially innocuous e-mails pop up in the trial judge’s in-box.

The District of Columbia charged M.C. with attempted murder and a bushel of other charges based on his allegedly firing a gun into a group of four people. One of the targets of the shooting was wounded.

The attack occurred in 2007 when M.C. was 15 years old. The prosecution’s case came down to the eyewitness identification of M.C. as the shooter, which was supposed to be in the form of testimony by I.W. and M.W.

All was going smoothly for the prosecution at trial until I.W. was called to testify and recanted his earlier identification of M.C. as the gunman.

I.W. gave some fishy answers as to why he was changing his story, but the prosecution ultimately was unable to elicit a satisfactory explanation from the witness.

Some light was shed on I.W.’s change of heart the following day at trial. Judge Patricia Broderick, who was hearing M.C.’s case, told the parties that she had received e-mail messages concerning I.W. from another judge on the D.C. bench.

As it turns out, I.W. had his own troubles with the law. In fact, I.W. had just pled guilty to unrelated juvenile charges in a hearing before Judge Broderick and his case had been referred to another judge.

The new judge in I.W.’s case happened to send Judge Broderick a couple of e-mails which revealed that M.C. and I.W. had recently crossed paths when they were in detention. What’s more, the judge mentioned in her messages that there had been a “physical altercation” between the two juveniles.

Naturally, this information went a long way in explaining why I.W. recanted his identification of M.C. as the shooter.

M.C.’s counsel immediately requested that Judge Broderick recuse herself from the case, but the judge refused, assuring the parties that she could keep separate the information about I.W. inadvertently disclosed in the e-mails.

With D.W.’s eyewitness identification still intact, the judge went on to find M.C. guilty on all counts.

Yesterday, the D.C. Court of Appeals vacated M.C.’s conviction and ordered a new trial before a different judge.

The court concluded that Judge Broderick’s receipt of the e-mails required her removing herself from the case under judicial canons calling for recusal when a judge has personal knowledge of a “disputed evidentiary fact.”

The court explained that “the record before us indicates not that the judge had overall impression of a witness from some previous ordinary contact, but that during the course of trial the judge received important information relating to a specific incident between the witness and the defendant that might explain why the witness recanted his prior identification of the defendant.

“The witness’s recantation of his prior identification went to a central issue in the government’s case against M.C. — the identity of the shooter — making I.W.’s trial recantation a ‘disputed evidentiary fact.’” (In re M.C.) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

How long is too long to wait before enforcing a money judgment? 

That’s what the Indiana Court of Appeals had to decide earlier this week when it addressed the case of a divorced mother who sought to collect from her ex-husband’s estate a child support award issued more than 20 years earlier.

Phyllis Steward and David Wilson had two children before their divorce in 1971.

In 1989, an Indiana court found Wilson in contempt for nonpayment of child support. The court ordered Wilson to pay the $3670 child support arrearage. For reasons unclear, the court also ordered Wilson to assign to Steward $5,000 from a personal injury lawsuit the man was pursuing.

Wilson died in 2009. Steward alleged that Wilson hadn’t paid the 1989 judgment and filed a claim against Wilson’s estate in the amount of $8670.

Naturally, the estate argued that it was way too late for Steward to collect.

The first arrow out of the estate’s quiver was an Indiana law requiring actions to enforce child support obligations to be commenced within ten years of the child’s emancipation or 18th birthday, whichever occurs first.

If the law applied, Steward was plainly out of luck.

But the court of appeals concluded that the child support statute of limitations did not apply, succinctly explaining that the mother’s claim against the estate “is an attempt to enforce the 1989 judgment, not an attempt to enforce a child support obligation.”

Next, the Wilson estate argued that the Steward’s $8670 was uncollectible under an Indiana law providing that all judgments are considered satisfied after 20 years.

The court drop-kicked this argument, too, taking the tack that the law in question merely creates a presumption of payment that may be rebutted.

The court concluded that it is “clear from Mother’s testimony that she asserted nonpayment. Moreover, the record is devoid of any evidence that Father’s estate pleaded payment. Thus, the evidence was sufficient to overcome the presumption of satisfaction of the judgment. As such, Mother’s claim against the estate is not barred.” (Estate of Wilson v. Steward)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

When you’re running $8.5 billion in the red, every penny counts. 

So it’s a good thing that last week the U.S. Postal Service succeeded in turning away a $150,000 lawsuit brought by an elderly Oregon woman who curiously blamed a postage vending machine for her hearing loss.

Marlene Pickens’ misadventure occurred on July 23, 2005. That day, Marlene went to the Sherwood post office with her five-year-old grandson.

Marlene and the boy entered the lobby to get postage from a vending machine. As Marlene was deciding which stamps she wanted, the little crumb cruncher pushed the coin return button on the vending machine and all hell broke loose.

Marlene’s grandson had just managed to upset the Model l625B Postal Products Vending Machine. You don’t want to mess with the 1625B.

No, the 1625B doesn’t emit poison gas or self-destruct when it feels threatened, but it does have a nasty sounding security alarm and a strobe light security feature.

Now, normally the 1625B isn’t supposed to sound an alarm when the coin return button is pushed, but they can be twitchy. Marlene’s grandson had gotten on this 1625B’s bad side and off went the alarm.

Naturally, with the alarm blaring and the strobe light flashing, the startled boy burst into tears. Marlene reached down to grab the boy and in typical “bad day” fashion managed to dump the contents of her purse all over the lobby floor.

Gathering up her belongings and grandson, Marlene fled from the post office, leaving the indignant 1625B behind.

Immediately, Marlene noticed a ringing in her ears that didn’t leave her. Marlene hadn’t had hearing problems before, but now she alleges that she experiences continuous, high-pitched ringing in her ears. She claims that the condition keeps her from sleeping and has caused her to suffer from depression.

So Marlene sued the U.S. Postal Service for negligence, alleging that the 1625B’s alarm system created a foreseeable risk of harm to post office customers. According to Marlene’s evidence, her hearing problems were the result of being exposed to 108 decibels of noise from the alarm for a period of approximately one minute.

In response, the Postal Service contended that it had never received complaints of hearing loss due to the 1625B’s alarm. The agency produced evidence showing that the 1625B’s alarm sounded for three minutes and reached a maximum noise level of 103.8 decibels.

This was within the Occupational Health and Safety Administration’s maximum levels for industrial noise exposure (115 decibels for 15 minutes a day), the National Fire Protection Association fire alarm and signaling code maximum total sound pressure (110 decibels), and the Uniform Federal Accessibility Standards audible alarm signals maximum (120 decibels).

United States Magistrate Judge Paul Papak had the task of addressing the Postal Service’s motion for summary judgment.

Of particular note for personal injury attorneys, Judge Papak decided that the Postal Service’s evidence regarding industry standards was not dispositive.

“[T]he fact that [Marlene] was exposed to noise within the applicable standards does not conclusively establish that the 1625B machine’s alarm did not create a foreseeable risk of injury,” the judge wrote.

The judge also found inconclusive the evidence regarding whether the Postal Service had notice of a safety issue regarding the alarm.

He noted that Marlene presented evidence that “the Sherwood postmaster held one ear when approaching the 1625B when the alarm had activated, thought the alarm was too loud, and had seen customers hurriedly leave the lobby, move away from the machine, or cover their ears when the alarm sounded. Consistent with those concerns, the postmaster asked if the alarm volume could be lowered.

“Thus, despite the lack of complaints of hearing-related injuries, the Sherwood postmaster attempted to reduce the volume of the alarm. These facts might permit a reasonable juror to find that the United States’ conduct in continuing to use the loud alarm created a foreseeable risk of hearing-related injury.”

However, the Judge Papak ultimately decided that Marlene’s negligence claim failed as a matter of law because she could not show that the Postal Service acted unreasonably with respect to business invitees in equipping the 1625B with a loud alarm.

The judge wrote that “vending machine alarms were viewed as useful security measures to protect postal products, especially because of the high cost of using security cameras to monitor areas open to the public and because postal staff would be unlikely to respond to a security situation with a 1625B machine during the evening and weekend, when the machines were most vulnerable. In sum, the time, effort, and risk to the United States of eliminating the alarm indicate that retaining the alarm was reasonable.” (Pickens v. U.S.) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

You just know that things are going to end badly when you give a guy a 12-pack of beer and a snowmobile. That they did for Donald Beebe.

Beebe lives in Branch County, Michigan. On August 26, 2004, Beebe was celebrating his 33rd birthday at home.

Apparently, Beebe is a natural multitasker, so while drinking beer and celebrating his birthday, he also did some work on his snowmobile.

After eight hours of beer and snowmobile maintenance, Beebe was ready for a test drive. Well, the snowmobile was ready, Beebe was not. Driving across his front lawn, Beebe grabbed a hold of the throttle and attempted to stand up.

Bad idea.

The snowmobile dumped Beebe and went on its merry way. Beebe found himself on the ground with a broken leg.

Off went Beebe to the Branch County Community Health Center where Dr. Richard J. Hartman Jr. diagnosed him with fractures to the tibia and fibula of his right leg. Hartman and Dr. Christina Sheely performed surgery to fix the leg, but the surgery allegedly did not go well.

Beebe suffered from intense post-surgical pain in his right leg, as well as numbness and swelling in his right foot, leaving him unable to engage in his normal activities.

Beebe sued Hartman and Sheely for malpractice, alleging that they negligently failed to diagnose and treat “deep compartment syndrome” in his leg. Beebe claims that he needed extensive reconstructive surgery to fix the condition.

The good doctors countered that Beebe’s lawsuit was barred by a Michigan law that precludes liability for personal injury when the plaintiff’s intoxication is “50 percent or more the cause of the accident or event that resulted in the death or injury.”

You see, blood tests taken after the snowmobile accident indicated that Beebe had a blood alcohol content of .13. Beebe himself admitted to drinking about eleven beers in the hours before his snowmobile misadventure.

Now, any first year law student can see the flaw in applying the intoxication defense to Beebe’s medical malpractice claim.

While Beebe’s intoxication may have had everything to do with his falling off the snowmobile, it had nothing to do with the professional judgments that Drs. Hartman and Sheely made in treating his broken leg.

But surprise, surprise! A Michigan trial judge bought the intoxication defense and dismissed Beebe’s lawsuit.

You just know that decision wasn’t going to stand, and it didn’t.

Last week, the Michigan Court of Appeals righted the wrong, finding that the doctors could be deemed the proximate cause of Beebe’s injuries despite his intoxication.

The court noted that there “was evidence that compartment syndrome can be a complication of fractures to the tibia and fibula and that plaintiff developed a deep compartment syndrome in his right leg after defendants performed surgery on the leg. There was also evidence that defendants did not diagnose or treat plaintiff’s compartment syndrome and that plaintiff suffered pain and clawing in the toes of his right foot as a result of the compartment syndrome.”

The court also explained that policy considerations precluded applying the statutory intoxication defense to Beebe’s medical malpractice claim.

“Although the [Michigan] Legislature’s purpose in enacting [the statute] was ‘to place more responsibility on intoxicated plaintiffs who are equally or more to blame for their injuries’ by ‘marking a shift toward personal responsibility[,]‘this purpose is not served when a plaintiff, albeit an intoxicated plaintiff, is precluded from bringing an action to recover for separate and discrete injuries that were the result of medical malpractice, and not the plaintiff’s intoxication.

“Such an outcome results in an inequitable shifting of the blame that favors a negligent medical care provider who is more at fault for the injury than the intoxicated plaintiff,” the court said. (Beebe v. Hartman)

Yes, Beebe gets his day in court against Drs. Hartman and Sheely after all. And we can only hope that it has occurred to Beebe that it may not the best of ideas to mix beer drinking with snowmobiling.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

There’s something viscerally satisfying about slapping fines on a parent when their child commits a crime.

You brought the child into the world, so society should get its pound of flesh from you when the child strays from the straight and narrow.

But the reality of life makes punishing parents unfair, not to mention unworkable. 

So it’s somewhat baffling that the City of Davenport, Iowa, would pass and then try to enforce a parental responsibility law.

Friday, the Iowa Supreme Court spelled out which parts of the law Davenport could enforce, and which parts it could not.

The Davenport City Council adopted the ordinance in 1999 to address what it perceived to be a wave of juvenile crime. The law requires parents to “exercise reasonable control” over their children.

Under the statute, if a child has committed more than one crime, a rebuttable presumption arises that the parent failed to exercise reasonable control of the child.

The parent can rebut the presumption by showing that he or she took reasonable steps to keep the child in line, but if the presumption isn’t rebutted, the parent can be in trouble.

The parent of a two-time offender can be ordered to complete a parenting course. The parent of a child who has committed three or more crimes faces fines up to $750.

Anne Hensler is a registered nurse living in Davenport and she was cited under the law after police twice arrested her son Nicholas for possession of marijuana.

The ACLU stepped in to help Hensler fight the ordinance. Hensler told The Des Moines Register that it was patently unreasonable to penalize for being unable to restrain her 6’2″, 200-pound son.

In 2009, a state judge sided with Hensley, finding the ordinance unconstitutional in that it violated the substantive due process rights of parents.

Friday, the Iowa Supreme Court reinstated most of the Davenport ordinance, finding problematic only the statutory presumption.

The court rejected the broad challenge that the ordinance infringes on Hensley’s fundamental right to make her own parenting decisions without interference from the state.

“When a child resides with his or her parent, the parent is probably in the best position to control the child’s behavior,” the court explained. “Thus, there is a reasonable fit between the government’s interest to curb delinquent acts of a child and the requirement that a parent should exercise reasonable control over his or her child. For this reason, the ordinance does not violate Anne’s due process rights by interfering with her fundamental right to parent.”

The court found the presumption in the ordinance unconstitutional, however.

“Long ago, we realized that things happen absent a person’s negligence,” the court said. “For this reason, we do not permit a fact finder to presume a person’s negligence merely because some incident occurred. Accordingly, we hold the provisions of the ordinance creating the presumption are arbitrary and irrational and violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”

Accordingly, the court went about severing the presumption from Davenport’s parental responsibility ordinance, plugging in its stead a requirement that the city “prove by clear, satisfactory, and convincing evidence that a parent failed to exercise reasonable parental control of his or her minor, and the ‘occurrence’ was caused by the parent’s failure to exercise reasonable parental control.” (Hensler v. City of Davenport)

- Pat Murphy

patrick.murphy@lawyersusaonline.com