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ADMINISTRATIVE LAW Elevators approved at historic landmark sites Transportation authorities may build elevators in front of Boston’s historic Old South Church and Public Library to give handicapped people access to a subway line, the 1st U.S. Circuit Court of Appeals ruled on Sept. 14. Neighborhood Assoc. of the Back Bay Inc. v. Federal Transit Admin., No. 06-1029. Historical preservation groups sued to block construction at those sites of the elevators, intended to bring the Massachusetts Bay Transit Authority’s Copley Square subway station into compliance with the Americans With Disabilities Act (ADA). The critics cited state and federal protections for the landmarks, which are listed on the National Register of Historic Places and lie within the protected Back Bay Historic District. State officials and the Federal Transit Administration pointed to a consultant’s study, which found that the elevator headhouses would have no adverse effect on the landmarks. A U.S. district judge in Massachusetts refused to block the project. Affirming, the 1st Circuit conceded that federal regulators had given “little more than the bare minimum attention to historic preservation issues,” and that regulations reconciling historic preservation and the ADA “are in some respects cryptic and confusing” and likely will give rise to more litigation in the future. However, it concluded that the plaintiffs had failed to show that authorities had abused their discretion or that the process was “arbitrary or capricious.”   Full text of the decision CIVIL RIGHTS Officials entitled to oversee special school State officials may view a directory of students, talk to students and monitor conditions amid complaints that a Connecticut public school for emotionally disturbed children used an abusive restraint system, the 2d U.S. Circuit Court of Appeals ruled on Sept. 15. State of Connecticut Office of Protection and Advocacy for Persons With Disabilities v. Hartford Board of Education, No. 05-1240-cv. Following complaints about the Hartford Transitional Learning Academy, the Connecticut Office of Protection and Advocacy for Persons with Disabilities sued for access to school records. The agency cited the federal Protection and Advocacy for Individuals with Mental Illness Act, the Developmental Disabilities Assistance and Bill of Rights Act of 2000 and the Protection and Advocacy of Individual Rights Act. A Connecticut federal district court granted the relief sought. The 2d Circuit affirmed. The school is open to scrutiny under all three acts, which allow access to and advocacy on behalf of people with disabilities, the court said. Parental consent is not a prerequisite for physical access to the children or access to their parents’ contact information. Congress intended to give protection and advocacy groups tools to investigate situations where they have cause to suspect abuse or neglect. CONSTITUTIONAL LAW Portable sign ban ruled unfair and overly broad A municipal ordinance banning most forms of portable signs was unconstitutional because it was unfair and more sweeping than necessary to serve the city’s goals of traffic safety and community aesthetics, the 9th U.S. Circuit Court of Appeals ruled on Sept. 15. Ballen v. City of Redmond, No. 04-36141. To advertise his business, Blazing Bagels, Dennis Ballen had an employee hold a portable sign reading, “Fresh Bagels-Now Open,” while directing passing motorists to the business. The city of Redmond, Wash., sent Ballen a cease-and-desist letter, informing him that the signs violated an ordinance prohibiting the use of most portable signs. Ballen challenged the ban’s constitutionality in state court. The city removed the suit to federal district court, where a judge granted summary judgment to Ballen. Affirming, the 9th Circuit held that the ban failed the fourth prong of the commercial speech test articulated by the U.S. Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561-62 (1980). The ordinance was more extensive than necessary to serve the city’s interests of traffic safety and community aesthetics, and exempted certain signs by powerful groups such as real estate agents, the court said. No right to vote on same-sex marriage Illinois election officials did not breach the constitutional rights of same-sex marriage opponents by blocking a proposed state ballot initiative that would urge the state Legislature to recognize unions of one man and one woman only, the 7th U.S. Circuit Court of Appeals ruled on Sept. 6. Protect Marriage Illinois v. Orr, No. 06-3111. Illinois is the only state that statutorily permits advisory questions to be placed on the ballot by citizens in general elections. A group called Protect Marriage Illinois sought to place on the November ballot an initiative instructing legislators to amend the state constitution to declare that “a marriage between a man and a woman is the only legal union that shall be valid or recognized in this State.” The organization collected more than 347,000 petition signatures. However, the state Board of Elections determined that more than 5% of them were invalid because of various technical irregularities. That meant the initiative fell short of the threshold and didn’t qualify for the ballot. The sponsors sued, alleging that the requirements for placing an advisory question on the ballot are so onerous that they violate freedom of speech, equal protection and due process of law. An Illinois federal district court dismissed the suit on the pleadings. “A state no more has a federal constitutional obligation to permit advisory questions on its ballot than it has to permit them to be painted on the walls of the state capitol,” the 7th Circuit said in affirming the lower court. The ballot, it added, “is not a traditional public forum for the expression of ideas and opinions, like streets or parks, to which reasonable access must be given to people who want to engage in political or other protected expression.” The court found no suggestion that Illinois has imposed its requirements in a way that discriminates against particular viewpoints. The state has an interest in imposing reasonable requirements to avoid ballot clutter, the court said. Heckler may pursue suit against arresting officer A heckler is entitled to make a federal case out of being ejected from a Cleveland Indians baseball game, the 6th U.S. Circuit Court of Appeals ruled in reinstating a lawsuit against the arresting officer. Swiecicki v. Delgado, No. 05-4036. Jose Delgado, an off-duty police officer moonlighting as game security, arrested Jeffrey Swiecicki for resisting arrest and disorderly conduct involving allegedly profane and abusive heckling. He claimed he heard Swiecicki yell, “Branyon, you suck,” and “Branyon, you have a fat ass.” Swiecicki denied being drunk or being abusive. He was convicted but the case was overturned on appeal. He sued the officer under 42 U.S.C. 1983, claiming violations of his First Amendment rights, arrest without probable cause and use of excessive force. An Ohio federal district judge ruled that Delgado was entitled to qualified immunity. Reversing, the 6th Circuit ruled that the evidence wasn’t clear whether the police officer was punishing Swiecicki for the content of his heckling, which did not appear to constitute fighting words not protected by the First Amendment. Given their “tame nature,” Swiecicki’s verbal protests against being removed were also protected. Additionally, the lower court took at face value the officer’s contention that Swiecicki physically resisted arrest. A dissent argued there was no reason to suspect the officer was punishing Swiecicki for criticizing outfielder Russell Branyon rather than enforcing the baseball park’s policy against abusive or antisocial conduct, and that “it seems to diminish rather than uplift the First Amendment to apply it in this setting.” CRIMINAL PRACTICE Lighter drug sentences apply prospectively Legislation reducing sentences under New York state’s strict Rockerfeller Drug Law was not intended to apply retroactively, the New York Court of Appeals ruled on Sept. 21. People v. Smith, nos. 113, 114 and 115. The New York Drug Law Reform Act of 2004 replaced the indeterminate sentencing scheme in the Rockerfeller Drug Law with a determinate system and reduced mandatory minimum prison sentences for nonviolent felony drug offenses. Three inmates-two who had yet to be sentenced when the new law took effect, and one already sentenced under the old law-sought to have the new sentencing system applied in their cases. The trial courts split on the matter, but the state’s intermediate Appellate Division ruled that none of the defendants was eligible for sentencing under the law. The Court of Appeals, New York state’s highest court, affirmed in a unanimous decision. The court said that changes to criminal sentencing laws may be applied retroactively unless the Legislature declares otherwise. In passing the new law, however, lawmakers made it clear the lighter sentences were to apply prospectively. “[W]hether the Legislature might or should have enacted broader reform is irrelevant to the only question before us,” the court said. FAMILY LAW Two dates don’t make a dating relationship Attending a party and watching a movie together in separate school years did not constitute a dating relationship that would entitle a teenage girl to a restraining order against a boy she accused of sexual assault, the Vermont Supreme Court ruled on Sept. 15. Wright v. Bradley, No. 2005-467. An 11th-grade girl sought a restraining order against a classmate she accused of assaulting her after a party. Such orders are available under Vermont law to family or household members or dating couples. The girl said that the two had known each other for years, conversed frequently at school and by telephone, had gone to a party together in the 9th grade and watched a movie together at the boy’s house in the 10th grade. The boy’s father testified that he had met the girl only once, and that the boy had been going out with another girl during the period in question. A family court judge refused to issue the order. Affirming, the Vermont Supreme Court saw ambiguities in the statute but concluded “that the Legislature intended to require more than past dating-that is, it intended a dating relationship that was substantial.” The lower court had not abused its discretion in concluding that was lacking here. LABOR AND EMPLOYMENT Employer didn’t become a party to tort action An employer’s attempt to recover its workers’ compensation costs by intervening in employees’ tort action against the manufacturer of an allegedly defective product did not make the employer liable for a comparative negligence claim by the manufacturer, the Connecticut Supreme Court held on Sept. 12. Barry v. Quality Steel Prods. Inc., No. SC 17453. Neil Barry and Bernard Cohade, employees of DeLuca Construction Co., were injured when a work platform fell to the ground. They sued Quality Steel Products Inc., the manufacturer of brackets used to hold the platform, arguing that the devices were defective and that the brackets’ failure was a proximate cause of their injuries. DeLuca intervened to recover its workers’ compensation payments to Barry and Cohade. After an initial judgment for Quality Steel was reversed on appeal, a jury rendered a verdict for Barry and Cohade. Quality Steel appealed, arguing that the trial court erred in refusing to instruct the jury that it could apportion responsibility to DeLuca pursuant to the comparative-responsibility provisions in Connecticut law. Quality argued that, because DeLuca had intervened, it was a party to the suit that could be held comparatively liable. Affirming, the Connecticut Supreme Court held that DeLuca did not subject itself to liability by intervening in this manner. “To include such an employer in the general scheme of allocation of responsibility would be wholly inconsistent with the employer’s immunity from suit by its employee under the Workers’ Compensation Act and with the employer’s limited role as intervenor to recoup the payments it is required by that act to make to its employee,” the court said. ADA doesn’t protect morbid obesity per se Morbid obesity must be associated with a physiological condition to constitute an impairment under the Americans With Disabilities Act (ADA), the 6th U.S. Circuit Court of Appeals ruled on Sept. 12. Equal Employment Opportunity Commission v. Watkins Motor Lines Inc., No. 05-3218. Stephen Grindle’s weight fluctuated between 340 and 450 pounds during the more than six years he worked as a driver and dock worker for Watkins Motor Lines. The carrier placed Grindle on a 180-day safety hold after Grindle’s doctor certified that his weight prevented him from safely returning to work following leave for a knee injury. The company fired Grindle when he could not return to work after the safety hold ended. The Equal Employment Opportunity Commission (EEOC) filed an ADA complaint on Grindle’s behalf. An Ohio federal district judge granted the carrier’s motion to dismiss, finding that nonphysiologically caused morbid obesity was not an “impairment” under the ADA. The 6th Circuit affirmed, citing precedents establishing that an abnormal physical characteristic must be related to a physiological cause to be considered an impairment. A concurring opinion emphasized that morbid obesity may have a physiological cause but that the EEOC had not proven that it always does, or that it did in Grindle’s case. Work-release reneger must pay unemployment An employee whose supervisor reneged on an assurance that she could keep her job while on work release for an off-the-job assault can’t be denied unemployment compensation, the Minnesota Supreme Court ruled on Sept. 14. Jenkins v. American Express Financial Corp., No. A04-2308. Cassandra Jenkins, an insurance specialist for American Express Financial Corp., informed her supervisor of her arrest for assaulting a nurse who was treating her. She was assured that the company had cooperated in work-release programs for other employees in the past and would do so for her. However, the supervisor failed to respond to repeated requests to verify her employment. Consequently, the program did not allow Jenkins to go to work and she was eventually fired for misconduct. Two levels of state unemployment law judges agreed, and the state Court of Appeals affirmed. Reversing, the Minnesota Supreme Court cited state law denying benefits to workers let go for misconduct or demonstrating “a substantial lack of concern for the employment.” The court noted that it had approved denial of benefits for other employees unable to get to work because they were behind bars. However, the court declined to do so in this case because Jenkins “engaged in significant attempts to report for work and continue her employment. Her conduct does not demonstrate a substantial lack of concern for her employment.” A dissent argued that the majority ignored clear statutory law. “Whatever we may think about Jenkins’ supervisor’s statements, we are not evaluating whether Jenkins should have been terminated or whether it was ‘fair’ for her employer to terminate her.” MEDIA LAW County’s exclusion of the public was improper A Virginia county was permitted to exclude the public from negotiations over a high school construction contract, but not from discussions about applying or enforcing the contract, the Virginia Supreme Court ruled on Sept. 15. White Dog Publishing Inc. v. Culpeper County Board of Supervisors, No. 052333. Three newspaper publishers sued Culpeper County, Va., after the board of supervisors closed its Oct. 5, 2005, meetings to talk to an architect about possible changes to the high school construction plans, which were the subject of a dispute between the county and the local school board. The publishers sought access to any records of the discussion. A state trial judge ruled that the county had failed to give proper notice of the closed discussion, but was within its authority to exclude the public from the strategy discussion. The judge refused to award legal costs to the publishers. The Virginia Supreme Court reversed. The state’s Freedom of Information Act allows closed meetings to discuss public contracts and interviews with bidders, the court said, but only when having the discussion in public would harm the government’s bargaining position. Here, however, the board was not discussing contract changes, but rather “its strategy in relation to the School Board due to the policy dispute between those two public bodies about the new high school facility,” and the law doesn’t allow that. The court added that the publishers were entitled to recover their litigation costs.

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