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ADMINISTRATIVE LAW DEA ephedrine order said to be too vague A Drug Enforcement Administration order barring a legitimate drug company from importing the stimulant ephedrine because it may be diverted to illicit drug-making, was set aside on March 26 by the U.S. Circuit Court for the District of Columbia because the order failed to distinguish between the raw chemical and its inclusion in a finished product. PDK Labs Inc. v. U.S. DEA, No. 03-1008. PDK makes over-the-counter medications, some of which contain ephedrine. The stimulant is listed in the Chemical Diversion and Trafficking Act because it is used in the illicit production of the controlled substance methamphetamine. PDK buys its raw, bulk ephedrine from foreign companies. Under 21 U.S.C. 971(c)(1), companies importing the listed chemicals must register with the DEA, which can then ban their import if “the chemical may be diverted to the clandestine manufacture of a controlled substance.” Under that statute, the DEA stopped two ephedrine shipments to PDK. PDK appealed. Remanding to a DEA deputy administrator for clarification, the D.C. Circuit said that it is unclear if the measure covers the diversion of finished or raw products. While 0.01% of PDK finished products have been seized at illicit sites, the court noted, all manufacturers of ephedrine-containing products face the possibility of their products being stolen or purchased for illicit use. Full text of the decision CONSTITUTIONAL LAW Anti-abortion plates violate free speech rights A South Carolina statute authorizing a specialty license plate with a “Choose Life” message is unconstitutional, the 4th U.S. Circuit Court of Appeals ruled on March 22. Planned Parenthood of South Carolina v. Rose, No. 03-1118. In 2001, South Carolina’s Legislature enacted a measure offering the Choose Life plate upon the payment of $4,000. Proceeds from the sale would go to health organizations not offering abortion services. When Planned Parenthood of South Carolina and an individual motorist challenged the measure, a federal district court found it to be unconstitutional viewpoint discrimination. Affirming, the 4th Circuit held that a license plate is a mixture of government and private speech. Specialty plates are a limited forum into which the state enters as a privileged speaker, since it can approve or deny plates of opposing views. It concluded that because the state authorized the expression of only one position in the abortion debate, it was discriminating against another. Full text of the decision CRIMINAL PRACTICE Sex between stepparent and stepchild isn’t incest Sex between a stepparent and stepchild doesn’t fit within the legal definition of incest, the Massachusetts Supreme Judicial Court ruled on March 22. Commonwealth v. Rahim, No. SCJ-09031. Dawud Rahim was charged with multiple offenses related to the sexual abuse of his stepdaughter, including six counts of incest. Rahim moved to dismiss the incest charges, saying that the relationship was not within the meaning of “degree of consanguinity” in the incest statute. The trial court certified the question to an appellate court that, in turn, allowed for direct appeal to the high court. Finding for the defendant, the high court said that the incest statute bars intercourse between those “within degrees of consanguinity within which marriages are prohibited.” Consanguinity has been defined as limited to blood relations and it is differentiated from relationships of affinity: i.e., marriage. The legislature was undoubtedly aware of this difference in terminology, the court said, so when it prohibited intercourse based on consanguinity, it was referring only to blood relations, not relations of affinity. Full text of the decision DAMAGES Wrong to set barriers to Elder Abuse Act punies Section 425.13(a) of California’s Code of Civil Procedure, which requires heightened standards when punitive damages are sought in an action arising out of the professional negligence of a health care provider, does not apply to actions under the Elder Abuse Act, the California Supreme Court held on March 25. Covenant Care Inc. v. The Superior Court of Los Angeles County, No. S098817. After an elderly man died at a nursing facility, his children sued for negligence. More than two years later, the children moved to file a fourth amended complaint containing allegations of elder abuse and seeking punitives. The facility opposed it, arguing that the plaintiffs had not complied with � 425.13(a), which requires that a motion demonstrating a “substantial probability” of success on the claim be filed within two years of the filing of the complaint. The trial court nonetheless granted the motion and that ruling was upheld by the state’s intermediate appellate court. Affirming, the state Supreme Court said that nothing in the language or legislative history of the Elder Abuse Act or � 425.13 suggests that the Legislature meant to link the two statutes. The purpose of the Elder Abuse Act, it said, was to protect a vulnerable part of the population with heightened civil remedies, while the purpose of � 425.13 was to discourage sham punitive damages claims in medical malpractice actions. Full text of the decision EMPLOYMENT Court orders woman be boys’ team head coach A Michigan school district’s reason for not hiring a female to coach the boys’ varsity basketball team was a discriminatory pretext, the 6th U.S. Circuit Court of Appeals ruled on March 24. Fuhr v. School Dist. of the City of Hazel Park, nos. 01-2215, 01-2606 and 02-1367. Geraldine Fuhr filed a sexual discrimination suit against the Hazel Park, Mich., school district after being passed over for the head coaching job of the boys’ varsity basketball team. Fuhr, who had 10 years of head coaching experience with the girls’ varsity team and several years of assistant coaching experience with both the boys’ varsity and junior varsity teams, was passed over in favor of a male teacher who had coached the boys’ freshman team for only two years. The district court granted her injunctive relief, naming her the head coach. Affirming, the 6th Circuit ruled that Hazel Park did not have a legitimate nondiscriminatory reason not to hire Fuhr. Fuhr provided testimony from two school board members and the school principal that they considered Fuhr’s gender in reaching their decision. Full text of the decision LEGAL PROFESSION Bias elimination demand for CLE is constitutional The Minnesota Board of Continuing Legal Education’s elimination-of-bias requirement does not violate the establishment clause of the U.S. Constitution, the Minnesota Supreme Court ruled on March 25. In re Petition of Rothenberg for Review of a Decision of the Board of Continuing Legal Education, No. A03-884. Minnesota lawyer Elliot Rothenberg failed to comply with Rule 9(A)(2) of the rules of the Minnesota Board of Continuing Legal Education, which requires lawyers to complete at least two hours of courses on the elimination of bias in the profession. At a board hearing, he asserted that the rule was unconstitutional because some of the courses that discussed religion also promoted it. Rejecting that assertion, the board concluded that Rothenberg was in noncompliance and recommended that his license be placed on involuntary restricted status. Affirming, the state Supreme Court said that courses that would satisfy the requirement include ones that discuss Islam in order to help lawyers better serve their Muslim clients. The court added that such courses neither advance nor inhibit religion and do not excessively entangle the state in religion. Full text of the decision TORTS Horse testing positive for steroid loses prize, purse A horse owner was on notice that use of a particular steroid was prohibited for 2-year-old racehorses and that the penalty for using the illicit substance could be forfeiture of the purse and the win, the Delaware Supreme Court ruled on March 22. Hochstetler v. Delaware Harness Racing Comm’n, No. 122, 2003. Homer Hochstetler owned, trained and drove Kadabra, a 2-year-old racehorse. After Kadabra’s wins in an elimination race in 2001 and a finals race a week later, the state steward contacted Hochstetler to tell him that the horse tested positive for phenylbutazone (or “bute”), a steroid, in the first race. Hochstetler was fined and his winnings from that race were forfeited. Because Kadabra’s win in the first race was thrown out, the results from the finals were also tossed, as was the purse. Hochstetler appealed to the state harness racing commission, which affirmed, as did a trial court. He argued that the statute barring the use of bute in 3-year-old horses was too vague to notify him that it was also banned for 2-year-olds. Affirming, the state Supreme Court said that one rule prohibits “medications of any type” from being in the blood of any horse at the time of a race “except as specifically permitted by these rules.” The sole rule that excepts bute from medications of any type applies only to horses 3 years old and older. Upholding the penalty, it added that Hochstetler was on notice of the possible sanctions since drugs similar to bute were within the same punishment range. Full text of the decision

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