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CONSTITUTIONAL LAW

Abortion clinic’s due process rights breached

An abortion clinic was denied its due process rights when a health department ordered it closed without first holding a hearing on the proposed closing, the 6th U.S. Circuit Court of Appeals ruled on Feb. 17. Women’s Medical Professional Corp. v. Baird, nos. 03-4249 and 04-3060.

Ohio law requires ambulatory surgical facilities to be licensed through transfer-of-patients agreements with local hospitals. A Dayton abortion clinic was unable to secure an agreement, so it applied for a waiver of the transfer requirement. The clinic provided a letter from a local hospital that said its emergency room services would be available as backup care for any clinic patients. The department denied the waiver and ordered the clinic to cease operations. The clinic secured both a temporary restraining order and a permanent injunction. An Ohio federal court held that denial of the license would cause irreparable harm to the clinic and to Dayton-area women seeking abortions; it also violated the clinic’s procedural due process rights.

The 6th Circuit reversed in part and affirmed in part. While closing the clinic may be burdensome for some of its patients, the fact that they may have to travel farther to get an abortion does not present a constitutional obstacle. On the other hand, the clinic’s due process rights were violated when the department ordered the clinic to close without first holding a hearing on the impact of that closing.

Full text of the decision

CRIMINAL PRACTICE

Restitution order doesn’t get ‘Booker’-type review

Though restitution orders imposed under the Victim and Witness Protection Act and the Mandatory Victims Restitution Act are criminal penalties, they are not reviewable for error under the U.S. Supreme Court’s 2005 decision in U.S. v. Booker, the 3d U.S. Circuit Court of Appeals ruled on Feb. 15. U.S. v. Leahy, nos. 03-4490, 03-4184, 03-4542, 03-4560 and 04-2912.

In three cases consolidated for appeal, the defendants were convicted by juries on various bank fraud and financial-crime charges. Some were sentenced to prison by the district courts, but all were ordered to pay restitution under the two acts. The defendants challenged the restitution orders under Booker, saying that the facts underlying the orders should have been submitted to a jury.

The 3d Circuit affirmed the convictions and punishment for all defendants imposed by a Pennsylvania district court, finding that the restitution orders under the two acts are not the types of criminal punishment that call for Sixth Amendment challenge under Booker. The amount the defendant must restore to his or her victim need not be admitted or proved to a jury. The statutes plainly state that judges cannot impose restitution in excess of the full amount of the loss; consequently, a judge is not imposing a punishment beyond what the defendant admitted to or what the jury found.

EMPLOYMENT

Worker may be fired for keeping firearm in car

An employer may terminate employees for storing firearms in their vehicles parked at the workplace in Oklahoma, the 10th U.S. Circuit Court of Appeals held on Feb. 13. Bastible v. Weyerhaeuser Co., No. 05-7037.

Some employees of Weyerhaeuser Co. and its contractors at an Oklahoma mill were terminated after firearms were found in their vehicles parked in the employee lot, in violation of published Weyerhaeuser policies. The former employees sued, alleging that their firing violated Oklahoma constitutional and statutory law establishing their right to carry firearms and that the search violated the Fourth Amendment. The case was removed to an Oklahoma federal court, which granted summary judgment to Weyerhaeuser.

The 10th Circuit affirmed. Although Oklahoma provides generally for citizens’ rights to keep and bear arms, a statute in effect at the relevant time said that nothing in the Oklahoma Self-Defense Act shall be construed to limit a business entity’s right to control the possession of weapons on its property. After that statute was amended, which was after the plaintiffs’ termination, the statute said that no business entity shall prohibit any person, except a convicted felon, from storing firearms in a locked vehicle on any property set aside for the vehicle. But the amendments are not retroactive.

ENVIRONMENTAL LAW

Federal Clean Water Act controls private wetlands

Regulations promulgated pursuant to the Clean Water Act may properly control discharges by owners onto their wetlands that are hydrologically connected to non-navigable tributaries of navigable-in-fact waterways, the 1st U.S. Circuit Court of Appeals held on Feb. 13. U.S. v. Johnson, No. 05-1444.

The federal government filed a civil suit against some cranberry farm owners, alleging that they had discharged pollutants into federally regulated waters without a permit, in violation of regulations promulgated by the Environmental Protection Agency (EPA) to carry out the mandate of the Clean Water Act. A Massachusetts federal court granted summary judgment to the government, holding that the three wetlands, owned by the cranberry farm owners, are hydrologically connected to the navigable Weweantic River by non-navigable tributaries. The defendants appealed, claiming that their property is not covered by the regulation promulgated by the EPA to carry out the mandate of the Clean Water Act. Alternatively, if their property is covered by the regulation, then either the regulation exceeds the authority granted by the act, or the act exceeds Congress’ authority under the commerce clause of the U.S. Constitution.

The 1st Circuit affirmed, holding that the Clean Water Act “extends jurisdiction to distant, non-navigable tributaries of navigable-in-fact waters, and wetlands adjacent to those tributaries.” The court said that Congress had decided to move away from the traditional definition of “navigable waters” and extend it to “waters of the United States,” which includes the right to “regulate at least some waters that are not navigable-in-fact.”

FAMILY LAW

Best interest of child must decide guardianship

“The best interest of the child” standard must be applied to determine who is to be an orphaned child’s guardian, the Colorado Supreme Court held on Feb. 13. In the Matter of R.M.S., No. 05SA308.

On Aug. 3, 2005, Stephen Sherwood shot and killed his wife, Sara Sherwood, and then killed himself, nine days after returning from active combat duty in Iraq. The couple’s minor daughter, R.M.S., was placed in the care of Ginny Villers, Sara’s sister, and her husband, William Brian Villers. On Aug. 8, 2005, the Villers filed an emergency petition for the appointment of a guardian for R.M.S. On Aug. 15, 2005, Kathleen Taylor Nace, Stephen Sherwood’s mother, petitioned for appointment of guardianship based on the will of the last parent to die-her son. The Villers objected to Nace’s petition and advanced a best interest of the child standard to the determination of guardianship. Under that standard, it would be in R.M.S.’ best interest to remain in their care and custody. The trial court appointed Nace guardian of R.M.S., holding that the relevant statute did not provide it with the discretion to employ a “best interests of the child standard.” The court instead applied a harm standard: Stephen Sherwood’s will controlled the guardianship appointment unless “the appointment causes harm or injury” to R.M.S. The court found no reason to believe that Nace would harm R.M.S.

The Colorado Supreme Court reversed. Colo. Rev. Stat. § 15-14-202 gives a parent the authority to appoint a guardian by will or other signed writing. Although the appointment is effective upon the death of the parent, until the court has confirmed the appointment, Colo. Rev. Stat. § 15-14-203 gives people with the care or custody of the minor the right to object to the appointment and to ask for judicial appointment of a guardian. Because the best interest of the child standard governs judicial appointment of guardians, the high court directed the lower court to appoint a guardian using this standard.

GOVERNMENT

City’s equal benefits law pre-empted by state, U.S.

New York City’s Equal Benefits Law, which bans municipal contracts with firms that don’t provide benefits to the same-sex partners of their employees, is pre-empted by state and federal law, the New York Court of Appeals ruled on Feb. 14. In the Matter of Council of the City of New York, No. 6.

Passed in 2004 over Mayor Michael Bloomberg’s veto, New York City’s Equal Benefits Law applied to all municipal contracts of $100,000 or more annually. The mayor unsuccessfully sought a temporary restraining order against the law’s implementation, then announced that the city would follow state law in its government-contracting procedures. The City Council filed a writ of mandamus to compel Bloomberg to enforce the law as written. The trial court granted the petition, but an intermediate appellate court dismissed it.

The New York Court of Appeals, the state high court, affirmed. The Equal Benefits Law is pre-empted by the General Municipal Law of New York, and by the federal Employee Retirement Income Security Act (ERISA). Under N.Y. Gen. Mun. Law § 103 (1), “all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder.”

The Equal Benefits Law violates this requirement by excluding from public contracting a “responsible bidder” that does not provide equal benefits to domestic partners. If there’s a conflict between the laws, the legislative restriction on the municipality’s power prevails. As for ERISA, it establishes standards of conduct for employee benefit plans. A consistent, nationwide regulatory scheme was clearly one of Congress’ goals; to that end it provided that “the provisions of [ERISA] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” Clearly, the coverage of ERISA overlaps with the Equal Benefits Law. The law, the court said, seeks to do exactly what ERISA specifically prohibits: prescribe the terms of benefit plans.

MEDIA LAW

No cause of action over governor’s blacklist

The Baltimore Sun and two of its reporters had no cause of action against Maryland Governor Robert Ehrlich over his order forbidding executive branch employees from talking to the reporters after the governor was displeased with their reporting, the 4th U.S. Circuit Court of Appeals held on Feb. 15. Baltimore Sun Co. v. Ehrlich, No. 05-1297.

After Baltimore Sun reporter David Nitkin and columnist Michael Olesker wrote pieces that displeased Maryland Governor Robert Ehrlich, the governor issued a directive forbidding state executive branch employees from communicating with the two journalists. The paper’s parent company and the journalists sued the governor in federal court under 42 U.S.C. 1983, arguing that the order violated their First Amendment rights by retaliating against them over constitutionally protected speech. The court granted the governor’s motion to dismiss the suit.

Affirming, the 4th Circuit held that the paper and the reporters had no cause of action. Calling the situation the same as one in which a public figure grants preferential treatment and access to preferred reporters, the court said, “Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would ‘plant the seed of a constitutional case’ in ‘virtually every’ interchange between public official and press.”

TORTS

State owes no duty over dependents’ harmful acts

The state department of Social and Health Services (DSHS) owed no duty to a man who was attacked by youths who were dependents of DSHS, the Washington Supreme Court ruled on Feb. 16. Sheikh v. Choe, No. 76723-8.

On March 27, 1999, four youths assaulted Said Aba Sheikh. The youths included Mychal Anderson, who had been placed in a dependency guardianship by DSHS, and Miguel Pierre, who was in foster care. Aba Sheikh sued the state for his injuries. The jury awarded Sheikh $10.4 million on his negligent placement claim. An intermediate appellate court certified the case to the Washington Supreme Court for direct review.

The Washington Supreme Court reversed. Statutory and case authority describe the duty of DSHS as one of protecting abused children from harm and not of protecting the public from the criminal acts of dependent children, which is left to the criminal justice system. Also, public policy supports this interpretation, as DSHS’ statutory mandate to ensure that foster care placements are in the least restrictive, most familylike setting available would be compromised if it had the responsibility to protect the public.

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