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CONSTITUTIONAL LAW First Amendment doesn’t apply to legal advocacy In filing motions and advocating for a client in court, an attorney is not engaged in free expression, the 6th U.S. Circuit Court of Appeals ruled on June 16. Mezibov v. Allen, No. 03-3973. Following his legal representation of a doctor charged with abusing a corpse, Marc Mezibov was assailed in the press by the prosecutor, Michael Allen. Allen issued a press release and appeared on a television show to say that Mezibov was more interested in a “show trial” to attack the Republican Party and question the prosecution’s ethics. Mezibov filed a civil rights action, alleging that Allen had made defamatory comments under color of law and that he was being retaliated against for exercising his First Amendment rights to protect his client’s Sixth Amendment rights. An Ohio district court dismissed the case. The 6th Circuit affirmed, holding that Mezibov was not engaged in free expression, but was simply doing his job. The court said that it was “not persuaded that a criminal defense attorney of ordinary firmness would be deterred from vigorously defending his clients as a consequence of the alleged defamation in this case.” Full text of the decision EMPLOYMENT Employer’s personality test violates ADA A particular personality test is a “medical examination,” and its use by an employer to determine promotions violates the Americans With Disabilities Act (ADA), the 7th U.S. Circuit U.S. Court of Appeals held on June 14. Karraker v. Rent-A-Center Inc., No. 04-2881. Three brothers named Karraker worked for the Rent-A-Center chain of stores, which only promoted employees who scored acceptably on its “profile” tests. The profile included 502 questions from the Minnesota Multiphasic Personality Inventory (MMPI), which considers scales that measure traits like depression, hypochondria, hysteria, paranoia and mania. The Karrakers’ scores deviated from the range Rent-A-Center considered acceptable, so company policy precluded their promotion. They sued on behalf of themselves and other Illinois Rent-A-Center employees, claiming that use of the MMPI violated the ADA. An Illinois federal court held that it did not. The 7th Circuit reversed, holding that the MMPI fits the ADA’s definition of a “medical examination” and that the ADA limits employers’ ability to use medical examinations as a condition of employment. This includes a prohibition on tests that tend to screen out people with disabilities. Because the test was “designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability,” the MMPI is “best categorized as a medical examination.” Full text of the decision ENVIRONMENTAL LAW CERCLA doesn’t cover cleanup of U.S. bases The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not apply extraterritorially to compel the U.S. government to perform preliminary assessments and cleanups at the sites of its former military bases in the Philippines, the 9th U.S. Circuit Court of Appeals held on June 15. Arc Ecology v. United States Air Force, No. 04-15031. In 1992, the United States vacated its Clark Air Force and Subic Naval bases in the Philippines, turning over the bases to the Philippine government. Ten years later, two environmental groups and 36 Philippine residents living near the bases sued the U.S. Air Force, Navy and the Defense Department, arguing that CERCLA required that they clean up alleged contamination of the sites. A district court granted the U.S. government’s motion to dismiss, holding that the relevant portions of CERCLA don’t apply beyond the borders of the United States. The Philippine groups appealed, arguing that CERCLA covered “possessions over which the United States has jurisdiction.” Affirming, the 9th Circuit held that CERCLA does not apply to former U.S. bases due to the statutory presumption against extraterritoriality “which applies with force and counsels against interpreting CERCLA to provide a cause of action to foreign claimants such as the appellants.” Full text of the decision FAMILY LAW Lesbian partner is child’s psychological parent As the psychological parent of a child, the lesbian partner of a deceased biological mother can intervene in a proceeding regarding the child’s custody, the West Virginia Supreme Court of Appeals ruled on June 17. Clifford K. v. Paul S., No. 31855. A lesbian couple, Tina and Christina, enlisted the help of a man named Clifford to help Christina conceive a child. The child resided continuously with Tina and Christina until Christina’s death three years later in a car accident. Christina’s father assumed physical custody of the child and was eventually named the child’s guardian. Tina and Clifford filed a joint petition for custody, though Clifford’s petition did not seek custody for himself. The family court awarded primary custody to Tina, finding her to be the child’s psychological parent, while Clifford and Christina’s parents were granted visitation rights. The circuit court reversed, rejecting the application of the psychological parent doctrine to same-sex parents. A divided West Virginia high court reversed, holding that Tina is not the child’s legal parent, so she could not initiate a custody proceeding on her own, but she is the psychological parent. A psychological parent is someone who, on a continuing day-to-day basis, through interaction, companionship, interplay and mutuality, fulfills a child’s psychological and physical needs. Full text of the decision INSURANCE LAW Insurer is not liable for disabled man’s food costs The no-fault insurance act does not require an insurer to reimburse a plaintiff for her incapacitated husband’s food expenses, a divided Michigan Supreme Court ruled on June 14. Griffith v. State Farm Mut. Auto. Ins. Co., No. 122286. Douglas Griffith suffered a debilitating brain injury in a 1994 car accident. He was in treatment facilities for three years before returning home to the care of his wife, Phyllis. The state’s no-fault statute provides for benefits for accidental bodily injury, but those benefits are circumscribed to those that are reasonably necessary for an injured person’s care, recovery or rehabilitation. Though Griffith’s no-fault insurer, State Farm, had paid for Griffith’s medical expenses, including his food expenses, while he was in the medical facilities, State Farm denied his wife’s request to have the insurer reimburse her for the cost of providing food for her husband. The trial court ruled that the food costs are an “allowable expense” that must be covered. An intermediate appellate court affirmed. The Michigan Supreme Court reversed, finding that the food expenses are not causally connected to Douglas’ injury. While such expenses are necessary for his survival, they are not necessary for his recovery or rehabilitation from the injuries he suffered, nor are they necessary for his care because of the injuries. Full text of the decision TORTS Standard building code breach isn’t negligence A violation of a standard building code adopted by a city ordinance doesn’t constitute negligence per se, the Alabama Supreme Court ruled on June 17. Parker Building Services Co. Inc. v. Lightsey, No. 1031377. Five-year-old Kace Lightsey went with his mother, Shiann Lightsey, to a facility used by the Alabama Academy of Fast Pitch Softball. Kace crawled under the guardrail of the observation deck, stepping onto the adjacent ceiling of a bathroom. When the ceiling collapsed, Kace fell onto the floor, hitting his head and suffering a stroke that left him permanently paralyzed on the left side of his body. Parker Building had performed some repairs to the facility prior to the academy becoming a tenant. However, Parker Building did not obtain a permit for the job or have an inspector inspect the finished work, as required by city ordinance. Shiann Lightsey went to trial against Parker Building on a negligence claim. The first trial resulted in a hung jury. At the second trial, the judge charged the jury on negligence per se. The jury returned a verdict in favor of Lightsey. The trial court denied Parker Building’s motion for a new trial. The Alabama Supreme Court reversed. In order for the violation of an ordinance to constitute negligence per se, it must have been enacted to protect a class of people and not the general public. The building code at issue in this case states that its purpose was to secure the “public safety, health, and general welfare.” Finding that the code was enacted to protect the general public, the court determined that negligence per se was inapplicable to violations of the code. TRUSTS AND ESTATES Hospital’s bankruptcy doesn’t stop bequest A liquidating hospital that still functioned when a testator died is eligible for a bequest, despite its no longer fulfilling its charitable mission, the 1st U.S. Circuit Court of Appeals held June 14. Boston Regional Medical Center Inc. v. Reynolds, No. 04-2241. Elizabeth Krauss bequeathed the residue of her estate equally to two churches and a hospital later named the Boston Regional Medical Center. Her guardians later transferred her real estate to inter vivos charitable trusts as a precursor to their sale, provided that, upon Krauss’ death, the remainder would be divided equally among those three parties. A probate court confirmed. When the medical center filed for bankruptcy, the two churches filed probate complaints to block distribution to the medical center. The bankruptcy court held that because Krauss died before the medical center ceased to function as a hospital, and that its debts were incurred in furtherance of its charitable mission, it could get a one-third share of the trust residue. A district court affirmed. The 1st Circuit affirmed, relying on Massachusetts cases, that “a charitable organization that has ceased to perform any charitable work and that is incapable of redirecting new funds for charitable purposes is ineligible to receive a charitable bequest.” But the court held that the hospital’s “right to the bequest was complete upon Ms. Krauss’ death,” at which time it was a fully functioning hospital, eligible to receive it. Full text of the decision

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