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CONSTITUTIONAL LAW ‘Schiavo’ law breaches separation of powers A law passed by the Florida Legislature, which enabled Florida Governor Jeb Bush to issue an executive order staying the withholding of nutrition from Theresa Schiavo, a Florida woman in a persistent vegetative state for several years, was an unconstitutional violation of the Florida Constitution’s separation of powers provisions, the Florida Supreme Court held on Sept. 23. Bush v. Schiavo, No. SC04-925. Theresa Schiavo suffered a heart attack in 1990, and entered a persistent vegetative state. Eight years later, her husband, Michael Schiavo, petitioned a Florida guardianship court to authorize the termination of life-support procedures. Schiavo’s parents challenged the termination of life support in court. After a lengthy procedural history in the litigation between the husband and the parents, the Florida Supreme Court denied review of an intermediate appellate court decision affirming a trial order in favor of the husband. Schiavo’s feeding tube was removed on Oct. 15, 2003. On Oct. 21, 2003, the Florida Legislature passed a bill giving the governor the authority to issue a one-time stay to prevent the withholding of nutrition and hydration from patients in circumstances similar to Schiavo’s. Governor Bush signed the bill, and then issued an executive order mandating that life support be reinstated. Michael Schiavo filed a declaratory judgment action, and a circuit court granted summary judgment, holding that the act was unconstitutional. The Florida Supreme Court affirmed, holding that the law violated the separation of powers under the Florida Constitution as an encroachment on the power and authority of the judicial branch. The court said, “When the prescribed procedures are followed according to our rules of court and the governing statutes, a final judgment is issued, and all post-judgment procedures are followed, it is without question an invasion of authority of the judicial branch for the Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case.” Full text of the decision CONTRACTS Oral promise of medical coverage is unreliable A red cross volunteer could not reasonably rely on oral statements that asserted that the organization would cover her medical expenses, the 11th U.S. Circuit Court of Appeals held on Sept. 23. Gilmour v. American National Red Cross, No. 04-12025. A Red Cross volunteer contracted Legionnaire’s Disease and was no longer able to work. On the date of her admission to a hospital, her health insurance expired. The Red Cross manuals provided that there was $10,000 worth of supplemental insurance coverage for its staff as well as a procedure for additional insurance coverage. The manuals stated that additional coverage was available at the director’s discretion for workers with insufficient resources for immediate care. The volunteer’s supervisor assured her that the Red Cross would pay for anything that her insurance did not cover. The Red Cross also assisted her in extending her health insurance through a post-employment insurance plan mandated by federal law. The post-employment insurance policy lapsed because the volunteer believed that the Red Cross would pay her medical expenses. When it failed to do so, she filed suit. The Red Cross then paid the $10,000 pursuant to its supplemental insurance policy. The Georgia federal court granted the Red Cross summary judgment. The 11th Circuit affirmed, holding that the volunteer was aware of the medical coverage available through the written statements in the Red Cross manuals, which described $10,000 worth of supplemental insurance coverage and additional coverage only with approval. In light of these statements, the court found that she could not reasonably rely on oral promises of additional insurance coverage. Full text of the decision CRIMINAL PRACTICE Restriction on computer use may not be intrusive Because computer technology will change within the next five years, it is too early for a defendant just beginning his sentence to challenge certain conditions of his supervised release that will restrict his computer use, the 2d U.S. Circuit Court of Appeals ruled on Sept. 20. United States v. Balon, No. 03-1680. Stephen Balon was convicted of transporting child pornography and sentenced to five years in prison, and five years of supervised release. Because of his prior convictions for sexual assault of his stepsister and his admitted interest in prepubescent children, the district court imposed, as a special condition of Balon’s release, that his computer usage be monitored randomly and that his computer equipment be subject to occasional removal for inspection. Balon challenged the special conditions as unrelated to his offense, and as constituting a greater deprivation of liberty than reasonably necessary. The 2d Circuit affirmed the relationship of the condition to the offense but, to the extent that Balon’s challenge depends on the unknown state of computer technology at the time of his release, instructed the district court to address his concerns nearer to the date of his actual release. For instance, Balon said that he should not be monitored remotely and randomly, but should be able to provide a log of his Internet and e-mail usage. Also, so as not to have to reveal personal and financial information, only suspiciously labeled files should be examined. The court pointed out that even existing software can erase the trail of Internet and e-mail traffic, and file names and extensions can easily be manipulated to hide their origin and content. If software and monitoring techniques exist in five years that can effectively monitor Balon’s computer use in a less intrusive way, they may be considered when he is released. Full text of the decision Car keys theft counts as ‘carjacking’ in sentencing The forcible stealing of car keys is “carjacking” for purposes of a sentence enhancement, the 1st U.S. Circuit Court of Appeals held on Sept. 22. U.S. v. Savarese, No. 04-1099. Stephen Savarese and an accomplice forced their way into the Shippees’ home, threatening them with a gun and demanding the keys to the SUV parked in the driveway. Savarese guarded the couple while his accomplice loaded stolen guns into the car. They then drove away in it. Savarese pleaded guilty in a Maine federal court to interference with commerce by robbery, among other things. His sentence was enhanced, pursuant to the U.S. Sentencing Guidelines Manual � 2B3.1(b)(5) (2003), which provides for enhancement where there has been a “carjacking.” The guidelines define “carjacking” as “the taking . . . of a motor vehicle from the person or presence of another by force and violence or by intimidation.” Savarese objected to the enhancement, because he took the keys inside the house while the SUV remained outside in the driveway. The 1st Circuit affirmed, on this issue of first impression, holding that the guidelines’ “presence” requirement calls for, “at a minimum, proximity to the vehicle and the ability to influence the space encompassing the vehicle.” In this case, the vehicle “remained proximate” to the Shippees in their driveway, and the Shippees “retained an ability to control the area in which the vehicle was located,” but were “induced to relinquish their keys only as a result of” threats and acts of violence. Full text of the decision EVIDENCE Hearsay isn’t substantial enough to revoke license Although hearsay was admissible in administrative law proceedings, the District of Columbia Board of Psychology erred in revoking the license of a psychologist accused of sexually harassing a patient where the patient was available to testify in an administrative proceeding, the District of Columbia Court of Appeals held on Sept. 23. John W. Compton v. District of Columbia Board of Psychology, No. 02-AA-1416. Psychologist John Compton treated another psychologist, Fatemah Klein, from 1986 to 1995. Following her treatment by Compton, Klein sought treatment from two other psychologists, and alleged in therapy sessions that Compton had engaged in sexual intercourse with her while he was treating her. In 1997, Klein filed a civil action against Compton in D.C. Superior Court. Klein was deposed during discovery, and the parties settled before trial. In a subsequent administrative proceeding to revoke Compton’s license, the government introduced Klein’s civil suit into evidence, but did not call her as a live witness to spare her the potential emotional trauma of testifying. Compton denied Klein’s allegations, and objected to admitting her prior deposition in lieu of live testimony, arguing that she was available to testify. An administrative law judge overruled Compton’s objection, and recommended to the Board of Psychology that Compton’s license be revoked. The board revoked Compton’s license, and he appealed. The D.C. Court of Appeals reversed, acknowledging that hearsay was admissible in administrative proceedings. However, such hearsay must constitute “substantial evidence” in support of administrative action. Although the court rejected Compton’s argument that deposition hearsay was never substantial evidence where live testimony contradicted it, it held that because credibility was a central issue in the case, the administrative law judge gave too much weight to Klein’s deposition. IMMIGRATION LAW Fear of forced abortion may make one refugee A Chinese woman’s claim that she underwent two forced abortions in China may qualify her as a “refugee” eligible for asylum, the 7th U.S. Circuit Court of Appeals held on Sept. 22. Lin v. Ashcroft, No. 03-1102. Xia Lin had a baby girl when she was under 23, the legal age for childbirth in China. She and her husband were fined, and family-planning officials inserted an intrauterine device (IUD) into her. Lin had it removed, and became pregnant. She claims she was taken by force to the hospital and given a forced abortion. She was again fined. Lin was given an IUD twice more. Again she removed it and again she got pregnant. Once more, she was forced to have an abortion, and was fined. When she got pregnant a third time, she arranged to be smuggled into the United States. She conceded removability, but requested asylum, withholding of removal and protection under the Torture Convention. An immigration judge denied her requests, finding her account to be not credible. The Board of Immigration Appeals affirmed. The 7th Circuit reversed, noting that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the statutory definition of “refugee” to include a person who has been persecuted for resisting a coercive population control program, including one who has been forced to abort a pregnancy or who has been persecuted for refusal to undergo abortion or sterilization and who has a well-founded fear of such future persecution. Upon review of the record and the State Department’s country profile for China, the 7th Circuit held that the immigration judge’s adverse-credibility finding is not supported by the evidence. The 7th Circuit remanded for consideration the issue of whether Lin’s claim that she was forced to abort two pregnancies constitutes past persecution as contemplated by the amended definition of “refugee.” Full text of the decision Aiding Sikh militants makes one deportable Giving food and shelter to a militant Sikh group is giving material support to terrorist groups, the 3d U.S. Circuit Court of Appeals ruled on Sept. 23. Singh-Kaur v. Ashcroft, No. 03-1766. Immigration officials initiated deportation proceedings against Charangeet Singh-Kaur, an Indian national, for entering without inspection. Singh-Kaur filed an application for asylum, saying he was a member of two organizations dedicated to the protection and promotion of the Sikh faith in India. He admitted in his application to having provided food and shelter to Sikh militants at meetings in his village. In later filings, he stated that he had never engaged in violent activity. Though an immigration judge granted Singh-Kaur’s application, the Bureau of Immigration Affairs rejected it, and ordered him deported for giving “material support” to those engaged in “terrorist activities.” A divided 3d Circuit affirmed. Though providing food and setting up tents is not specifically listed in the statutory illustrations of what constitutes material support, the court found the list nonexhaustive, and that the inclusion of those activities was not arbitrary or capricious. Full text of the decision MOTOR VEHICLES DUI law does not apply to drunk horse riders The drunken-driving law does not apply to intoxicated horse riders, the Pennsylvania Supreme Court ruled on Sept. 22. Commonwealth v. Noel, and Commonwealth v. Travis, nos. J-23-2004 and J-24-2004. Richard Carroll Noel and Keith Douglas Travis were charged with driving under the influence after being found to be intoxicated while riding their horses on a public highway in rural Pennsylvania. In a writ of habeas corpus, Noel challenged the constitutionality of a statute that extends traffic rules to riders of animals, except for those rules that “by their very nature can have no application.” The trial court agreed, finding the statute unconstitutionally vague. The appellate court relinquished jurisdiction, transferring the case to the high court. The Pennsylvania Supreme Court affirmed, holding the statute to be vague because it was unclear if, for example, it was a violation of the vehicle code for a horse to step onto a sidewalk, or if a rider thrown from a horse has to notify the police of an accident. The statute does not provide a reasonable standard by which an ordinary person may contemplate his future conduct. Full text of the decision WORKERS’ COMPENSATION Expert’s court testimony fee is reimbursable An expert’s witness fee for live in-court testimony is a reimbursable cost of legal proceedings pursuant to R.C. 4123.512(F), which provides for the reimbursement of the “cost of any legal proceedings” incurred by claimants who bring successful workers’ compensation appeals, ruled the Ohio Supreme Court on Sept. 22. Schuller v. United States Steel Corp., No. 2003-1868. When a worker contracted asbestosis on the job, he filed for workers’ compensation benefits. His employer denied the claim, and he appealed. A jury returned a verdict in his favor, and the court ordered the costs to be taxed to the bureau. Upon the filing of a post-verdict motion for reimbursement of costs and attorney fees, the bureau agreed to cover attorney fees and miscellaneous deposition and filing fees but objected to the remaining expenses, which included expert-witness fees. The trial court agreed. The court of appeals affirmed the denial of the expert-witness fee for a live in-court witness but allowed reimbursement for the fee of an expert witness whose videotaped deposition was played at trial. The Ohio Supreme Court reversed, determining that the cost of a live in-court expert witness should be reimbursed. The court explained that a claimant’s case strategy should not be compromised in the interest of economy. Full text of the decision

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