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CIVIL RIGHTS Male nurse ban in ob-gyn is human rights breach A hospital rule barring male nurses from working in its obstetrics unit violates West Virginia’s human rights law, the West Virginia Supreme Court of Appeals ruled on Feb. 19. Slivka v. Camden-Clark Mem. Hosp., No. 31404. Registered nurse Michael Slivka filed a gender discrimination suit against Camden-Clark Memorial Hospital, challenging its policy of not hiring male obstetrics nurses. The hospital told Slivka that its concern was patient privacy. A trial court granted summary judgment to the hospital, finding that the gender limitation was a genuine occupational qualification within the Human Rights Act’s exceptions. Reversing, the West Virginia high court said that to justify such discrimination, an employer must show how the central mission of the business would be undermined by the hiring of members of both sexes; the factual basis for its belief that members of one gender could not perform the essential duties of the job without intruding on the privacy concerns of its patrons and why alternatives to the gender-excluding policy would be impossible to achieve. The hospital’s policy failed to meet these tests, the court said. Full text of the decision CONSTITUTIONAL LAW Religious display is First Amendment violation A monument displaying the Ten Commandments in the largest public park in Plattsmouth, Neb., is “the paradigmatic violation of the Establishment Clause,” the 8th U.S. Circuit Court of Appeals ruled on Feb. 18. ACLU Nebraska Foundation v. City of Plattsmouth, No. 02-2444. The monument features etchings of the Ten Commandments, the Egyptian “all-seeing eye,” an eagle, an American flag, two six-point stars and intertwined Greek symbols of Jesus Christ. A “John Doe” challenged the monument’s continued display. The ACLU joined the suit to assert the rights of its local members. A trial court reviewed the case under the U.S. Supreme Court’s 1971 Lemon v. Kurtzman standard and found that the monument violated the First Amendment’s establishment clause. The 8th Circuit affirmed, ruling that Lemon, not the high court’s 1982 ruling in Larson v. Valente, was the appropriate analytical tool. Lemon established a three-prong test, questioning the act’s legislative purpose, its principal or primary effect and whether it fostered excessive government entanglement with religion. In contrast, the strict scrutiny standard in Larson would have tested only whether the state’s action favors certain types of religion over others. Full text of the decision CRIMINAL PRACTICE Racial comments amount to ineffective assistance The lawyer for a black man on trial for allegedly murdering a white woman provided ineffective assistance when he told jurors that blacks sometimes bothered him just because they were black and that jurors might be impartial if they admitted to feeling the same way, the Florida Supreme Court held on Feb. 19. State v. Davis, nos. SC02-803 and SC03-186. Henry Davis was accused of murdering 73-year-old Joyce Ezell. His lawyer made the remarks during jury selection, adding that if the jurors harbored such feelings, they could overcome them and be impartial. He repeated the comments in his closing. After the jury convicted him, Davis moved for post-conviction relief, arguing that his lawyer provided ineffective assistance. Reversing, the high court said, “We condemn these statements not because counsel chose to discuss the topic of race in voir dire, which is permissible, but because he did so in a manner that fatally compromised his ability to effectively represent Davis in his capital trial.” Full text of the decision FAMILY LAW OK to detain teen under federal juvenile law Detention and restitution were appropriate for a juvenile offender under the Federal Juvenile Delinquency Act and the Mandatory Victim Restitution Act, the 1st U.S. Circuit Court of Appeals ruled on Feb. 19 in a first impression case. United States v. Patrick V., No. 03-2138. Patrick V., a juvenile, admitted to participating in the arson of a business, causing $725,000 in damage. After being charged under the Federal Juvenile Delinquency Act (FJDA), a trial court ordered him to serve 30 months of detention followed by 27 months of supervised release, plus joint liability with his adult accomplice for restitution. He appealed, arguing that the detention and restitution conflicted with the act’s rehabilitation goals. Affirming, the 1st Circuit said, “The challenge to both the detention and the restitution aspects of the judgment reflect the uneasy tension between the rehabilitation focus of the FJDA and the sterner approach of the more recent Mandatory Victim Restitution Act.” Full text of the decision GOVERNMENT State ownership of street doesn’t alter city liability The city of Philadelphia was not immune from liability for injuries on a city sidewalk despite the Commonwealth of Pennsylvania’s limited ownership of the adjacent street, the Pennsylvania Supreme Court held on Feb. 18. Walker v. Eleby, No. 16-EAP-2002. Ruth Walker hurt her wrist and shoulder and lost four teeth when she fell on a cracked Philadelphia sidewalk. Walker and her husband sued the city. The city moved for summary judgment, arguing that because the state owned the adjacent street, the city was immune from liability under the state Tort Claims Act. A trial court denied the motion and an arbitrator ruled for the Walkers. The city appealed to the county common claims court, which held that the city was not liable. An intermediate appellate court affirmed. Reversing, Pennsylvania’s Supreme Court said, “The General Assembly has established that city roads are designated as state highways ‘for maintenance and improvement,’ and has specifically exempted the Commonwealth from any obligation to maintain the curbing or footways of any such street . . . .Given the limited scope of the Commonwealth’s ‘takeover’ of a city road designated as a state highway, we hold that the Commonwealth does not ‘own’ such a road for purposes of determining Tort Claim Act immunity.” Full text of the decision IMMIGRATION LAW State Dept.’s report on China doesn’t bind court Holding that state Department Country Reports were not binding on immigration courts, the 2d U.S. Circuit Court of Appeals held on Feb. 18 that the Board of Immigration Appeals (BIA) erred in failing to consider a Roman Catholic Chinese asylum applicant’s testimony about beatings by Chinese authorities when it denied his application. Chen v. INS, No. 00-4136. Tian-Yong Chen, who entered the U.S. illegally, applied for asylum arguing that he had been detained and beaten for trying to establish a church. An immigration judge denied his application, holding that he had not proven past persecution or a well-founded fear of future persecution. The BIA affirmed. Chen appealed, and the Immigration and Naturalization Service (INS) conceded that BIA erred when it said Chen had not testified to the beating. But the INS said that BIA’s conclusion would have been the same, noting that the U.S. State Department’s country report for China stated that persecution of Christians there was primarily limited to priests and church leaders. Reversing, the 2d Circuit said, “the immigration court cannot assume that a report produced by the State Department . . . presents the most accurate picture of human rights in the country at issue. We note the widely held view that the State Department’s reports are sometimes skewed toward the governing administration’s foreign-policy goals and concerns.” Full text of the decision

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