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CIVIL RIGHTS No private right of action to enforce HUD rules The Rehabilitation Act does not create a private right of action to enforce Housing and Urban Development (HUD) regulations designed to address accessibility in public housing projects, the 3d U.S. Circuit Court of Appeals ruled on Aug. 30. Three Rivers Center for Independent Living Inc. v. Housing Authority of the City of Pittsburgh, No. 03-4356. The Pittsburgh housing authority was repeatedly found to be lacking in its compliance with HUD regulations on accessibility. The authority even, at one time, signed a voluntary compliance agreement acknowledging its civil rights deficiencies. Demand for public housing exceeded supply, so when a handicapped individual was assigned to a nonhandicapped-compliant unit, an organization that assists such individuals sued the authority for violation of the HUD regulations. The district court dismissed the complaint, determining that the organization did not have a private right of action against HUD. The 3d Circuit affirmed, though it called the authority’s track record “troubling.” The private right of action provided for in Rehabilitation Act � 504 allows plaintiffs to sue to enforce personal rights created by that section, and no others. The authority can fail to comply with the regulations and still not deny access to a disabled individual, so while the regulations here deal with rights and obligations, they do not deal with personal rights created by � 504. Full text of the decision COMMUNICATIONS Court has broad powers under cable policy law The cable Communications Policy Act (CCPA) empowers a district court to issue an ex parte order authorizing a freeze of assets or a search and seizure of property belonging to an alleged violator of the act, the 11th U.S. Circuit Court of Appeals held in an issue of first impression on Aug. 30. AT&T Broadband v. Tech Communications Inc., No. 03-11235. AT&T Broadband sued a company and its owner for “pirate” cable descramblers in violation of the CCPA. These illegal cable descrambling devices allow the possessor to receive all of AT&T’s scrambled cable programming for free. AT&T sought an ex parte order freezing the company owner’s assets and allowing AT&T to seize property related to its claims. A Florida federal court initially denied the order but later granted it based on information that evidence was likely to be destroyed otherwise. The Florida federal court denied the defendants’ motion to dissolve the asset freeze and to return all items seized. The 11th Circuit affirmed. Although the CCPA does not explicitly authorize the court to freeze assets or conduct a search and seizure of an alleged violator for a violation of the statute, the circuit court held that a district court had proper equitable power to do both unless the underlying statute clearly restricts such powers. Full text of the decision CONSTITUTIONAL LAW Stadium sidewalk is public forum for protest The sidewalk surrounding the Gateway Sports Complex, where the Cleveland Indians and Cleveland Cavaliers play, is a public forum, but the common areas within the complex are not, the 6th U.S. Circuit Court of Appeals ruled on Sept. 1. The United Church of Christ v. Gateway Economic Development Corp. of Greater Cleveland, No. 01-3434. Knowing that Gateway did not let anyone use the sidewalks and common areas at the complex for solicitation, protest or advertisement, the United Church of Christ asked a district court in Ohio for an injunction to allow the organization and others to stage a protest at the complex against the Indians’ use of the Indian mascot and logo. The district court denied the injunction, saying the sidewalk and the common areas were nonpublic forums that were subject to reasonable access restrictions. The 6th Circuit affirmed in part, reversed and remanded in part. The sidewalk is a traditional public forum: It looks just like any other public sidewalk, and it is part of a public thoroughfare that contributes to the city’s downtown transportation grid. The common areas are not, however, public forums. Groups that have been allowed to gather have had a specific interest in the actual game being played. The court remanded for a determination of whether Gateway’s policy is a content-neutral time, place and manner restriction. Full text of the decision CONTRACTS ‘Best efforts’ deals are not too vague to enforce Indiana courts would likely conclude that “best efforts” contracts are not too vague to enforce, the 7th U.S. Circuit Court of Appeals held on Aug. 31. Hinc v. Lime-O-Sol Co., No. 03-4247. Thomas Hinc sued Lime-O-Sol Co. for breach of a clause in a written contract between himself and Lime-O-Sol, which required Lime-O-Sol to use its “best efforts” to market a particular stain remover “in a manner that seems appropriate.” There had been no discussion between the parties before the contract’s execution about the meaning of the “best efforts” clause. An Illinois federal court granted Lime-O-Sol’s summary judgment motion, finding that the “best efforts” provision was vague and unenforceable as a matter of Indiana law. The 7th Circuit reversed. Noting Indiana’s policy of construing contracts as valid rather than void, where possible, the circuit court held that Indiana’s highest court would likely hold that a “best efforts” clause is not so vague as to be unenforceable as a matter of law and can be contractually enforced. In this case, Lime-O-Sol had made no effort, prompting the court to comment that ” ‘Best efforts,’ as commonly understood, means, at the very least, some effort” rather than “ zero effort.” Full text of the decision CRIMINAL PRACTICE Court may order child to have psychological test A trial court may, at its discretion, order the child victim in a sexual assault case to undergo a psychological examination, the South Carolina Supreme Court ruled in a matter of first impression on Aug. 30. In the Interest of Michael H., No. 25529. A boy of 12 or 13 was charged in juvenile court for the rape of his 4- or 5-year-old nephew. The charge was brought after the mother explained to the victim what rape was, and the victim said that that was what his uncle had been doing to him. A medical examination of the alleged victim did not reveal signs of sexual assault. He also told another doctor that he heard voices in his head. However, the uncle’s motion to have the alleged victim undergo a psychological exam was denied. The uncle was convicted, but the appeals court reversed, holding that the trial court had abused its discretion in refusing to order an exam. A divided Supreme Court affirmed. A trial court must have broad discretion to conduct a trial, and an absolute bar to the exercise of this discretion ignores the necessary balance between the victim’s privacy rights and the defendant’s right to a fair trial. In this case, where the victim might be experiencing auditory hallucinations, the trial court abused its discretion by failing to order the exam. Full text of the decision EVIDENCE Facts about rape victim’s prostitution admissible Evidence of an alleged rape victim’s career as a prostitute was admissible despite Connecticut’s rape shield law, the Connecticut Supreme Court held on Sept. 7. State v. DeJesus, No. SC 16782. After a jury convicted Luis DeJesus Jr. of rape, DeJesus appealed, arguing that a trial court erred in excluding evidence of the alleged victim’s career as a prostitute. DeJesus argued that evidence of prostitution was admissible under an exception to Connecticut General Statutes � 54-86f, the state’s rape shield law, because it was relevant to a critical issue in the case-his defense of consent. As a result, DeJesus argued, exclusion of the evidence violated his Sixth Amendment right to confront his accuser. Agreeing with DeJesus and reversing, the Connecticut Supreme Court held that the trial court erred in excluding the evidence of prostitution. The court said, “the evidence that the victim had engaged in prostitution and that the defendant knew that she had engaged in prostitution was so relevant and material to whether the sexual intercourse was consensual that it was admissible under � 54-86f (4), and the trial court’s ruling excluding that evidence was improper.” Full text of the decision FAMILY LAW Mass. doesn’t recognize parenthood by contract Because massachusetts does not recognize “parenthood by contract,” a woman was not bound by alleged promises to her former lesbian lover to care for the lover’s child, the product of artificial insemination during the couple’s relationship, the Massachusetts Supreme Judicial Court held on Aug. 25. T.F. v. B.L., No. SJC-09104. T.F. and B.L. were lesbian lovers. At T.F.’s urging, the couple agreed to have a child, and B.L. was artificially inseminated. Although the couple’s relationship deteriorated, and B.L. moved out, B.L. allegedly promised to provide financial support for the child. T.F. sued for child support, arguing that B.L. had breached her agreement to provide support. A trial court agreed that the couple had formed an agreement to “create a child.” However, it sought guidance from the Court of Appeals as to whether “parenthood by contract” was the law of Massachusetts. The Massachusetts Supreme Judicial Court granted direct review. The state high court held that “parenthood by contract” was not the law of Massachusetts. This meant that, though T.F. had established an implied agreement, any such agreement was void on public policy grounds. The court said, “Apart from the unenforceable contractual obligation found by the Probate Court judge, the defendant is legally a stranger to the child. Because the defendant is not a parent under any of the statutory provisions enacted to establish parenthood, she has no duty to support the child financially, and she may not be ordered to pay child support. Because nonparents have no duty to pay child support absent a statutory duty, equity does not provide a remedy in this case.” Full text of the decision GOVERNMENT Grand jury exception covers quasi-state body The “government personnel” exception to the federal grand jury secrecy rule can apply to Massachusetts’ quasi-governmental Insurance Fraud Bureau (IFB), the 1st U.S. Circuit Court of Appeals held in a matter of first impression on Aug. 30. USA v. Pimental, nos. 03-1098, 03-1153. Arthur Pimental and his wife owned and operated a business about which they made misrepresentations to insurance personnel resulting in their paying improperly low workers’ compensation premiums. With a judge’s permission, the attorney who prosecuted the Pimentals disclosed some secret grand jury materials to an investigator with the IFB, which investigates potential cases of insurance fraud. IFB is authorized and structured by Massachusetts statute, but is partially run and entirely funded by insurers. The Pimentals were indicted on counts relating to workers’ compensation insurance fraud. They moved to dismiss the indictments, claiming that the release of information to the IFB violated Fed. R. Crim. P. 6(e). The Massachusetts federal court agreed that the grand jury secrecy rule had been violated, but held it to be harmless because the grand jury testimony that resulted from the transmittal of information was not crucial to its decision to indict. A jury convicted Pimental of two counts of mail fraud, but the district court dismissed the convictions for reasons unrelated to Rule 6(e). The 1st Circuit held that the district court did not err when it found that IFB investigators here are “government personnel” within the meaning of Rule 6(e)(3)(A)(ii), which allows disclosure of grand jury materials to “government personnel” in certain circumstances. The 1st Circuit held that not all IFB employees are government personnel, and that a prosecutor wishing to invoke the exception with respect to the IFB must first ask a court to determine whether the individual is within the exception. Full text of the decision INTERNATIONAL LAW DVT no accident under Warsaw Convention Because a passenger’s case of deep vein thrombosis (DVT) was not an “accident” under the Warsaw Convention, an airline was not responsible for the passenger’s damages, the 9th U.S. Circuit Court of Appeals held on Sept. 3. Rodriguez v. Ansett Australia Ltd., No. 02-56473. Adriene Rodriguez developed DVT on an Air New Zealand flight from Los Angeles to Auckland, New Zealand. Rodriguez sued Air New Zealand and others, claiming that the airline had negligently caused her injuries, and that her injuries resulted from an “accident” under the Warsaw Convention. Air New Zealand moved for summary judgment, arguing that Rodriguez’s condition was not the result of an accident. A district court granted Air New Zealand’s motion for summary judgment, and Rodriguez appealed. Affirming, the 9th Circuit agreed with the district court’s reliance on the U.S. Supreme Court’s decision in Air France v. Saks, 470 U.S. 392 (1985), which interpreted “accident” under the Warsaw Convention as an event requiring “an unexpected or unusual event or happening that is external to the passenger.” Holding that there was no accident in this case, the court said, “Rodriguez’s DVT clearly is the type of internal reaction to the normal operation of the aircraft, with no unusual external event, that is not an accident under Saks.” Full text of the decision LEGAL PROFESSION Attorney’s threats are not protected speech A lawyer’s prelitigation threats to an adverse party to initiate a criminal prosecution and release information to the press were not protected speech in preparation for litigation, California’s 2d District Court of Appeal held on Sept. 2. Flatley v. Mauro, No. B171570. Attorney D. Dean Mauro represented a woman who claimed that Irish entertainer Michael Flatley has sexually assaulted her. Mauro threatened to initiate a criminal prosecution and release information to the press wherever Flatley performed if Flatley did not pay a sufficient settlement. Flatley denied the sexual assault allegation, refused to pay and sued Mauro for civil extortion. Mauro moved to strike Flatley’s complaint, arguing that his speech was protected prelitigation communication. A trial court denied the motion to strike, and Mauro appealed. Affirming, California’s intermediate 2d District Court of Appeal held that Mauro’s threats were unprotected. Noting that lawyers in California were specifically prohibited from threatening criminal prosecution to obtain leverage in civil suits, the court said, “Mr. Mauro’s written and oral threats to report plaintiff’s alleged rape to various state, federal, and international authorities were not protected speech. Rather, his statements were clearly prohibited by the Penal Code, the California Rules of Professional Conduct, and the Illinois Rules of Professional Conduct. A threat to accuse someone of a crime or of injury with the intent to extort money or obtain a pecuniary advantage is not a ‘protected activity’ under federal or state law.” Full text of the decision

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