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BANKRUPTCY Stock sale funds that go to health care not exempt A debtor may not exempt proceeds from the sale of shares of stock in a business under an agreement to sell such stock as benefits used exclusively to pay for the debtor’s end-of-life medical, surgical or hospital care or medications, the Montana Supreme Court determined on April 25. In re Archer, No. 05-277. In filing for joint Chapter 7 bankruptcy in December 2004, Lee and Vicki Archer listed an asset with a market value of $25,000, described as proceeds from the sale of stock in a business Lee formed from which they received payments of $1,000 per month. The asset was also on their list of exempt property. In March 2005, Lee Archer’s doctors told him he had about six months to live. In addition to medical insurance, the entire $1,000 per month in payments from the sale of the stock was used to pay for his medical care. The bankruptcy trustee objected to the Archers’ claim that the payments are exempt. A federal Montana bankruptcy court certified to the Montana high court the question: May a debtor claim an exemption pursuant to Mont. Code Ann. � 25-13-608(1)(f), in proceeds from the sale of shares of stock in a business under an agreement to sell such stock, as exempt “benefits,” when such proceeds are used exclusively to pay for the debtor’s end-of-life medical, surgical or hospital care and medications? The Montana Supreme Court answered no. According to Section 25-13-608(1)(f), a debtor is entitled to exemption from execution for “benefits paid or payable for medical, surgical, or hospital care to the extent they are used or will be used to pay for the care.” The court found that proceeds from the sale of the stock are not exempt benefits under the statute even if they are exclusively used to pay for the debtor’s medical, surgical or hospital care because there are no contractual restrictions on their use.   Full text of the decision CONSTITUTIONAL LAW OK to fire cops, firemen who joined racist float Former New York City Mayor Rudolph Giuliani and other city officials did not violate the First Amendment rights of city police and firefighters who were fired for participating on a racist float in a Labor Day parade, the 2d U.S. Circuit Court of Appeals ruled on April 27. Locurto v. Giuliani, nos. 04-6480, -6498, and -6499. Joseph Locurto was a New York police officer, and Jonathan Walters and Robert Steiner were both city firefighters. All three served racially diverse areas of the city. All three participated in the Broad Channel Labor Day parade on a float called “Black to the Future.” The float featured several African-American stereotypes, and the three men mocked civil rights slogans and the recent dragging death of James Byrd in Jasper, Texas. The three were fired. They sued the mayor and the heads of the police and fire departments saying that they were fired for exercising their First Amendment rights. A New York federal court ordered the three men reinstated. The 2d Circuit reversed. The mayor and department heads had an interest in maintaining a relationship of trust between the departments and the communities they serve that outweighed the right of the plaintiffs to express themselves. “The First Amendment does not require a Government employer to sit idly by while its employees insult those they are hired to serve and protect.” EMPLOYMENT Volunteers unable to use sexual harassment law An intermediate Massachusetts appellate court erred in holding in favor of a volunteer who claimed that a co-worker harassed her sexually because a Massachusetts sexual harassment statute did not apply to volunteers, the Massachusetts Supreme Judicial Court held on April 21. Lowery v. Klemm, No. SJC-09580. Lorraine Lowery worked as a volunteer at a “swap shop,” operated by the town of Falmouth, Mass., at its waste management facility. She sued Francis Klemm, gatekeeper and land supervisor at the same facility, claiming that Lowery had been harassed sexually by a co-worker. A Massachusetts trial court granted summary judgment to Klemm, holding that the applicable commonwealth sexual harassment statute, Mass. Gen. Laws ch. 214, � 1C, did not apply because the alleged conduct did not occur in an employment or academic context. An intermediate state appellate court reversed, holding that the law did apply to volunteers. Reversing, the Massachusetts Supreme Judicial Court held that the sexual harassment law didn’t apply to volunteers. Noting that Lowery’s interpretation of the statute would actually give volunteers more rights than employees in sexual harassment claims, the court said, “Given the emphasis on the problem of workplace sexual harassment in the over-all statutory scheme, we do not believe that the Legislature intended to make it more difficult for employees . . . to bring such claims.” GOVERNMENT No First Amendment right to jury-pool data There is no first Amendment right of access to jury-pool records held by an Oregon state agency, the Oregon Supreme Court ruled on April 27. Jury Service Resource Center v. De Muniz, No. S52571. The Jury Services Resource Center, a scholar and a criminal defendant asked the Oregon Judicial Department for data the department compiles about the jury- pool selection process. The department refused. The state trial court ruled for the government, saying that neither the Public Records Law nor the state constitution required disclosure of the data. An intermediate state appellate court reversed, saying that there was a First Amendment right of access to the data. The Oregon Supreme Court reversed. Though the juror-selection process for a particular trial traditionally has been open to the public, the process of selecting potential jurors to serve in the juror pool has not. Access to a public trial isn’t the same as access to government information. The requesters are essentially asking for the work product of government employees, and the requirement of a public trial does not translate into a requirement for public oversight of the pretrial process of selecting jurors. HEALTH LAW Voluntary patients get no due process duty of care A state does not owe an affirmative due process duty of care to residents of state institutions who are there voluntarily, the 3d U.S. Circuit Court of Appeals ruled on April 28. Torisky v. Schweiker, No. 05-1496. When a Pennsylvania state institution for mental retardation closed, the patients were transferred to a private facility. During the transfer, 20 adult patients who did not want to be placed in community-based facilities were physically prevented from contacting their families or guardians as they were being forced onto buses and transported to various facilities. Arguing that the transfer had caused the patients physical and psychological damage, the patients’ guardians filed suit in a Pennsylvania federal court seeking relief under the due process clause. The court held that the state had an affirmative due process duty of care to the patients, regardless of whether they were in the institution voluntarily or involuntarily. The 3d Circuit affirmed in part and reversed in part. The court held that there is no affirmative due process duty of care to patients who are voluntarily in state mental institutions. The duty extends only to those institutionalized involuntarily. The court said, however, that the case needs to proceed in order to determine which of the patients were there voluntarily and which under a court order. TORTS Limitations statute for core tort is controlling The statute of limitations in a wrongful death suit is limited by the statute of limitations for the wrongful act that allegedly led to the wrongful death, the Mississippi Supreme Court found on April 27. Jenkins v. Pensacola Health Trust Inc., No. 2005-IA-02342-SCT. Mildred Woodson was a resident of Greenbough Nursing Center from Dec. 20, 1997, until her date of death on Oct. 4, 2001. On Dec. 31, 2002, Mary Jenkins, administrator of the Woodson estate, sued Pensacola Health Trust Inc. in a Mississippi trial court, claiming that Woodson died because of injuries sustained while she lived at Greenbough. On March 18, 2004, Pensacola filed a motion for partial summary judgment seeking dismissal of the claims of tortious conduct, which allegedly occurred or accrued before Dec. 31, 1999 (more than three years prior to the filing of the suit). The court granted Pensacola’s motion and dismissed all claims that accrued before Dec. 31, 1999, three years prior to the date the suit was filed. Affirming, the Mississippi Supreme Court overruled its decision in Gentry v. Wallace, which held that the statute of limitations in a wrongful death case begins to run on the date of death. Since wrongful death cases are based on an underlying tort, the statute of limitations should be based on the statute of limitations for that tort, which in this case is the three-year statute applicable for negligence actions. Agency may be liable for lax child abuse inquiry The Idaho Department of Health and Welfare and its employees could be liable for a negligent investigation of a reported case of child abuse, the Idaho Supreme Court held on April 24 in a case of first impression for the court. Rees v. Idaho, No. 31632. Justin Rees filed a report with the Idaho Department of Health and Welfare, alleging that his son, Tegan Rees, who was living with his mother, was being abused. The department sent its employee, Nicole Ott, to investigate. Ott elected to leave the child with the mother. Shortly afterward, the mother’s boyfriend, Chris Griffeth, beat Tegan Rees to death. Rees sued the department, Ott and others in state court, arguing that they were liable due to a negligent child abuse investigation. A district court granted summary judgment to the department. Reversing, the Idaho Supreme Court held that the department and its employees could be liable for a negligent investigation. The court said, “[H]ere it is the anticipation that Tegan could be abused again which would make a failure to competently investigate negligent. The battery in this instance was by Griffeth, not the Department. It is the very likelihood of further abuse by Griffeth which makes conducting an incompetent investigation into the reported abuse of Tegan negligent.”

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