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ADMINISTRATIVE LAW Limits on record disclosure go against Privacy Act The social security Administration provision that limits disclosure of an individual’s medical records to a person’s “representative” is unlawful because it conflicts with the Privacy Act, which was intended to help individuals gain access to their government records, the U.S. Court of Appeals for the 7th Circuit held on June 12. Bavido v. Apfel, No. 98-4046. Accordingly, an individual who had sought such access for three years was entitled to court-supervised disclosure, pending promulgation of a new procedure governing access to records, the court said. ATTORNEY FEES Firm gets fees after suit by client that promised to pay A law firm is entitled to recover attorney fees under 20 U.S.C. 1927 from a corporate client who sued the firm for legal malpractice and lost — after the firm had successfully defended the client in a medical-malpractice action; the client had commended the firm for its good work and promised to pay its bill; and a default judgment had already been entered against the client in a fee action by the firm because the client unnecessarily increased the firm’s expenses, the U.S. District Court for the Eastern District of Pennsylvania held on June 12. Trauma Services Group P.C. v. Hunter, MacLean, Exley & Dunn P.C., No. 99-CV-5979. BUSINESS LAW Permanent bar from the securities business is OK A securities and Exchange Commission order permanently barring from the securities industry a Paine Webber vice president who was found guilty of “churning” by carrying out approximately $24 million in trades on accounts with average balances of only $700,000, causing losses of approximately $195,000 over a 10-month period, was not error, the U.S. Court of Appeals for the 1st Circuit held on June 19. Rizek v. SEC, No. 99-2114. Despite customers’ indicating conservative investment objectives, the court said, the petitioner pursued extremely risky strategies by trading U.S. bonds on margin. Although the sanction was labeled permanent, the court noted that the petitioner could apply to the SEC for consent to work in the securities industry, or find a National Association of Securities Dealers member firm willing to employ him and apply on his behalf. CIVIL PRACTICE Defense’s ‘meager’ response to discovery requests faulted Summary judgment was improperly granted in favor of the defendants in a civil rights action brought pursuant to 42 U.S.C. 1983 and 1988, and Puerto Rican law by plaintiffs who were subjected to an indiscriminate police search at gunpoint in their own home, the U.S. Court of Appeals for the 1st Circuit ruled on June 16. Carmona v. Toledo, No. 99-1246. Although police were searching for bank robbery suspects, the court said, they allegedly failed to identify themselves or present a search warrant to the plaintiffs. The court held that the official “responses to plaintiffs’ discovery requests appear to have been meager, untimely, and incomplete,” thus improperly resulting in summary judgment, when the “district court should have looked more carefully into those issues and ascertained whether plaintiffs have received a full and fair chance to discover relevant information in the hands of the defendants.” Group’s seizure of horses was under color of law When the humane Society detained a horse breeder, searched his property and seized his horses, after finding four dead horses on his property, it was acting under color of law and thus could not claim that its status as a private entity barred the breeder’s complaint that his constitutional rights had been violated, the Ohio Court of Appeals, 9th District ruled on June 14. Donnelly v. Zekan, No. 19563. Also, the trial court should not have granted summary judgment in favor of someone who boarded one of the breeder’s horses after the seizure because he presented no evidence that he was not negligent in allowing the horse to become pregnant, the appeals court said. CIVIL RIGHTS Failure to give antibiotic is not deliberate indifference Prison deputies’ failure consistently to administer on schedule all of the antibiotics prescribed for a detainee’s outer- and middle-ear infections did not constitute a conscious disregard for the detainee’s health or rise to “deliberate indifference” imposing liability under the 14th Amendment, the U.S. Court of Appeals for the 7th Circuit held on June 13. Zentmyer v. Kendall County, nos. 99-1163 and 99-1823. Judge Michael S. Kanne said, “But deliberate indifference is an onerous standard for the plaintiff, and forgetting doses of medicine, however incompetent, is not enough to meet it here.” PLRA’s deadline on judges’ response to states is OK Congress, in a provision of the Prison Litigation Reform Act of 1996 (PLRA), lawfully imposed a deadline for federal judges considering state officials’ requests that court monitoring and supervision of state prison conditions be ended, the U.S. Supreme Court ruled on June 19. Miller v. French, No. 99-224. By a 5-4 vote, the court reinstated the provision that automatically suspends a federal judge’s supervision of a state prison if he or she fails to respond to such a state request within 90 days. The decision reversed a 7th Circuit ruling which said that the provision violated the constitutionally required separation of powers between the legislative and judicial branches of government because it is a direct legislative suspension of a court order. “The PLRA does not deprive courts of their adjudicatory role, but merely provides a new legal standard for relief and encourages courts to apply that standard promptly,” Justice Sandra Day O’Connor wrote for the court. She was joined by Chief Justice William H. Rehnquist and justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice David H. Souter, in an opinion joined by Justice Ruth Bader Ginsburg, concurred in part but dissented from the judgment. Justice Stephen G. Breyer wrote a dissenting opinion in which he was joined by Justice John Paul Stevens. Fall on stairs sufficient to give rise to Sec. 1983 claim Allegations that an inmate on crutches fell and hurt himself after a corrections officer forced him to walk down a steep flight of stairs rather than take the elevator were sufficient to give rise to liability under 42 U.S.C. 1983 for an Eighth Amendment deliberate-indifference claim because a jury could conclude that the officer’s actions were objectively unreasonable, the U.S. District Court for the Southern District of New York held on June 13. Carbonell v. Goord, No. 99-3208. Allegations of a beating sustain inmate’s complaint Allegations that corrections officers beat an inmate with batons after a strip search, resulting in injuries that required up to a month to heal, were sufficient to deny the officers’ motion for summary judgment in a claim under 42 U.S.C. 1983 for violation of the Eighth Amendment’s provisions governing cruel and unusual punishment, the U.S. District Court for the Southern District of New York held on June 8. Carter v. Kiernan, No. 98-2664. CONSTITUTIONAL LAW Student-led public school football prayer nixed Public schools cannot allow students to lead stadium crowds in prayer before football games, the U.S. Supreme Court ruled on June 19. Santa Fe Independent School District v. Doe, No. 99-62. By a 6-3 vote, the court ruled that allowing such pre-game prayers by representatives elected by their fellow students violates the constitutionally required separation of church and state. “Nothing in the Constitution … prohibits any public school student from voluntarily praying at any time before, during or after the school day. But the religious liberty protected by the Constitution is abridged when the state affirmatively sponsors the particular practice of prayer,” Justice John Paul Stevens wrote for the court. He added: “School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The delivery of such a message — over the school’s public address system by a speaker representing the student body, under the supervision of school faculty and pursuant to a school policy that explicitly and implicitly encourages public prayer — is not properly characterized as private speech.” Joining Stevens were Justices Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented. Writing for the three, the chief justice said, “Even more disturbing that its holding is the tone of the court’s opinion: It bristles with hostility to all things religious in public life.” Court applies ‘rational nexus’ test to impact fee In considering whether a city engaged in an unconstitutional taking by imposing an impact fee on a developer, the appropriate standard is the “dual rational nexus” test, the Ohio Supreme Court held on June 14, in a case of first impression. Home Builders Association of Dayton and the Miami Valley v. City of Beavercreek, No. 98-2572. The court held that the city had met its burden of showing that a reasonable relationship existed (1) between traffic generated by a new development and the need for new roads and (2) between the amount of the fee and the benefits the developer would derive from the new roads. The fact that the city did not contribute an equal amount of public funds to the development project did not show that the developer bore a disproportionate burden, the court said, particularly as it received credits against the fee for its voluntary improvements to the roads near the development. Wrongs to Children Act prohibition is too vague The provision of the Wrongs to Children Act prohibiting a parent’s knowing allowance of “sexual abuse” of a child was unconstitutionally vague because it failed to identify the “reasonable steps” required of the parent to prevent the abuse in order to comply with the statute and avoid criminal prosecution, the Illinois Supreme Court held on June 15. People v. Maness, No. 86463. Accordingly, the court said, a mother who knowingly permitted her 13-year-old daughter to engage in sexual intercourse with her 17-year-old boyfriend in her home so that she could “control” the situation could not be criminally prosecuted. Law to protect minors impermissibly chills speech A law prohibiting dissemination of harmful material to minors, Wis. Stat. � 948.11(2), is unconstitutional in the case of the Internet and other situations that do not involve face-to-face contact between a minor and a defendant, when the state is not required to prove the defendant’s knowledge of the victim’s age when disseminating harmful material, because the statute has an impermissible chilling effect on protected speech, the Wisconsin Supreme Court held on June 16. State v. Weidner, No. 99-1334-CR. CONTRACTS Incarceration didn’t thwart ability to make contracts The former owner of certain real property could not challenge the validity of the quitclaim deed he executed while in prison, the Ohio Court of Appeals, 11th District held on June 16. Kucharski v. Weakland, No. 99-P-0013 The statute governing the civil rights of felons enumerated all the situations in which he would be deemed incompetent, the court said, and there was no provision precluding an incarcerated individual from entering into contracts or transferring title to property. CRIMINAL PRACTICE Admission of prior crimes needed to prove conspiracy The admission of evidence of prior crimes committed by the defendants, convicted for conspiring to import more than 5,000 pounds of marijuana into Puerto Rico, as well as the testimony of a key witness — who was enlisted by the conspiracy and was also cooperating with U.S. Customs Service agents — was not an abuse of discretion because the evidence of other criminal conduct was found “specially relevant” to prove one or more elements of the crime of conspiracy, the U.S. Court of Appeals for the 1st Circuit held on June 19. U.S. v. Rodriguez, nos. 99-1030, 99-1031 and 99-1032. Dismissal of co-conspirator doesn’t sink conspiracy case A defendant who was convicted of conspiracy to transport women, including minors, for the purposes of prostitution between Massachusetts and Delaware — in addition to 17 other related counts — unsuccessfully argued that he was improperly convicted of conspiracy because the government had initially indicted a co-conspirator but later dismissed those charges after the defendant was convicted, the 1st U.S. Circuit Court of Appeals for the 1st Circuit held on June 19. U.S. v. Footman, No. 99-1558. Although the alleged co-conspirator was a prostitute, the court said, she acted in furtherance of the conspiracy by registering for motels, driving the vehicles used to transport the prostitutes, registering two cars under her name, handling the finances of the operation and acting as enforcer, thus supporting the verdict of conspiracy. ELECTION LAW Court applies ‘reasonable reader’ standard The Ohio elections Commission properly applied the reasonable-reader standard to find that a candidate for public office violated election laws when he distributed campaign literature containing an illustration of a hand passing money under a table with accompanying text implying that the incumbent, his opponent, had accepted a bribe for a construction contract, the Ohio Supreme Courtheld on June 14. McKimm v. Ohio Elections Comm’n, No. 99-305. Evidence that the candidate knew the meaning of “passing money under the table” and did not believe that the incumbent had accepted any bribes supported the commission’s finding that he acted with actual malice, the court said. EMPLOYMENT LAW Inconsistent dates render complaint time-barred A pilot’s claim under the Age Discrimination in Employment Act was time-barred because his deposition testimony stated that he received notice of termination more that 300 days before he filed suit but a subsequent affidavit denied such knowledge and no explanation was given for the later inconsistency, leaving the evidence of untimely filing unrebutted, the U.S. District Court for the Eastern District of Pennsylvania held on June 13. Bailey v. United Airlines Inc., No. 97-5223. Several statements doom employee’s disability claim The decision to deny an employee short-term disability benefits was not arbitrary and capricious because a letter from her family physician stating she had “no way of knowing” when the employee could return to work; a discharge summary from a treatment facility that neither released the employee for work nor stated that she was unable to return to work; and an outside physician’s evaluation that the employee was not disabled, should return to work, and did not need accommodations to do so were insufficient to justify continued payment of benefits, the U.S. District Court for the Eastern District of Pennsylvania held on June 13. Parelli v. Bell Atlantic-Pennsylvania, No. 98-3392. Worker failed to give proper notice of hostility A deli worker’s claim for hostile work environment failed to establish respondeat superior liability because she only complained to one member of management and did not use any words to signify that the complained-of behavior had sexual overtones, and therefore the employer had neither actual nor constructive notice of sexual harassment, the U.S. District Court for the Eastern District of Pennsylvania held on June 12. Sicalides v. Pathmark Stores Inc., No. 99-CV-3465. Employer must make room for Seventh-Day Adventist An employer was required to rehire a Seventh-Day Adventist and allow him to work the morning-afternoon shift instead of the afternoon-evening shift, because the employee’s religion prevented him from working on his Sabbath, which starts at sunset on Friday, the Ohio Court of Appeals, 3d District, held on June 14. Franks v. National Lime & Stone Co., No. 5-99-58. Although the employer denied religious discrimination, stating that it had terminated the employee for twice being tardy during his initial probationary period in violation of company policy, the court said, it did not enforce the tardiness policy until the religious accommodation issue surfaced. No immunity for judge in politically tinged case A city court judge was not entitled to summary judgment on qualified immunity grounds in his employee’s constructive discharge action, arising from her demotion and a reorganization of the judge’s staff to assign her duties to a new position, the U.S. Court of Appeals for the 7th Circuit held on June 15. Mitchell v. Randolph, No. 99-3943. The court found issues of material fact warranting a trial concerning whether the employee was retaliated against for her longtime support of the judge’s political adversary. ERISA doesn’t bind bank’s ‘top hat’ compensation plan The substantive provisions of the Employee Retirement Income Security Act did not bind a bank’s deferred compensation plan because the plan was an exempt “top hat” plan, the U.S. Court of Appeals for the 2d Circuit held on June 16. Demery v. Extebank Deferred Compensation Plan (B), No. 99-7002. The court noted that the plan was not funded by the employer, was offered to a select group of employees and that there was no evidence that the covered employees could not negotiate for themselves. Although 15% of the bank’s employees were offered the plan, the court held that this was still a select group because their salary was double the average of other bank employees and because they were all in key managerial positions. State bond statute comports with ERISA The employee retirement Income Security Act (ERISA) did not pre-empt a state-law cause of action to enforce claims under a labor-and-materials bond for wages and fringe-benefit contributions allegedly due arising from a Peabody, Mass., public works project, the U.S. Court of Appeals for the 1st Circuit held on June 19. Carpenters Local Union No. 26 v. US Fidelity & Guaranty Co., No. 99-1786. Abrogating its holding in Williams v. Ashland Engineering Co., the appeals court held that the Massachusetts bond statute did not impermissibly supply an alternative enforcement mechanism for ERISA plan benefits, and therefore did not trigger pre-emption. Furthermore, the court said, the state statute neither imposed requirements on ERISA plans nor exempted such plans from otherwise applicable statutory provisions, and therefore the statute comported fully with ERISA. No evidence of bias in discharge of marshal A village did not have to hold a hearing before refusing to permanently appoint a deputy marshal at the end of his six-month probationary period, the U.S. Court of Appeals for the 6th Circuit held on June 20. Curby v. Archon, No. 99-3049 Although the village waited almost two weeks after the period ended to reach its decision, the court said, as a probationary employee, the officer could have had no property interest in continued employment until he received a final permanent appointment. Also, the officer could not maintain his claim that the village later terminated him as a part-time auxiliary officer in violation of the Uniformed Services Employment and Reemployment Rights Act because he did not show that his military service was a motive for his firing. FAMILY LAW Primary care provider not always entitled to custody A lower court’s award of custody to the father of two children was upheld on June 16 by the Vermont Supreme Court, which rejected the mother’s contention that she should have been deemed the primary care provider and, absent a finding of unfitness, was entitled to custody. Payrits v. Payrits, No. 99-408. The high court, noting its obligation to defer to the authority of the family court, held that it has never adopted a rule finding that a primary care provider will be awarded custody and declined to do so in this case. GOVERNMENT Federal power pre-empts state foreign trade laws Federal law pre-empts a Massachusetts statute that limited the state’s purchases from Myanmar, also known as Burma, because of that nation’s record on human rights, the U.S. Supreme Court ruled unanimously on June 19. Crosby v. National Foreign Trade Council, No. 99-474. “The state act is at odds with the president’s intended authority to speak for the United States among the world’s nations,” Justice David H. Souter wrote for the court. Noting that Congress imposed its own sanctions on Myanmar in 1996 and under that law President Clinton barred new U.S. investments in that country, Justice Souter added, “Congress clearly intended the federal act to provide the president with flexible and effective authority over economic sanctions against Burma. It is simply implausible that Congress would have gone to such lengths to empower the president if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance” that might conflict with federal action. Justice Antonin Scalia wrote a concurring opinion in which Justice Clarence Thomas joined. LAND USE AND PLANNING Additional sewer fees do not violate civil rights In a suit filed under 42 U.S.C. 1983, a laundromat’s payment of additional sewer-tapping fees in order to gain permits for construction and occupancy due to the high rate of wastewater discharge did not violate its equal protection rights because the fees are rationally related to the needs of the sewage system and the laundromat brought forth no evidence of another laundromat being treated differently, the U.S. District Court for the Eastern District of Pennsylvania held on June 13. American Fabricare v. Township of Falls, No. 99-1650. LEGAL PROFESSION Client failed to present testimony on standard In a legal malpractice suit, the defendant attorney was entitled to summary judgment because the plaintiff, his former client, did not present expert testimony regarding the standard of care required of the attorney, the Ohio Court of Appeals, 8th District, held on June 15. Freechack v. Drain, No. 76280. The client alleged that had the attorney acted diligently, he should have been able to set forth a viable fraud claim against the client’s landlord, but the court said that issue was not within a jury’s general knowledge and experience; furthermore, there could have been strategic reasons justifying the attorney’s actions. NATIVE AMERICAN LAW Tribe deserves a chance to prove water rights The Quechan Indian Tribe is entitled to seek additional rights to Colorado River water, the U.S. Supreme Court ruled on June 19. Arizona v. California, 8 Original. The justices, voting 6-3, said that the tribe should have the opportunity to prove to a “special master” its claim that it owns about 25,000 acres of Fort Yuma Reservation land straddling the river on the border between Arizona and California. Unless the tribe is found to own the land, it will have no claim to the water. Although the decision does not end a dispute that in one form or another has been before the high court since 1952, it signals a defeat for Arizona and California officials who had argued that the tribe sold the disputed land to the federal government for $15 million in 1983, the year the tribe was paid compensation for previous trespassing. “We hold that the claims of the United States and the tribe to increased water rights for the disputed boundary lands…are not precluded by the consent judgment” of 1983, Justice Ruth Bader Ginsburg wrote for the court. Chief Justice William H. Rehnquist, in an opinion joined by justices Sandra Day O’Connor and Clarence Thomas, concurred in part but dissented from the judgment. PERSONAL PROPERTY Law may not favor rancher in dispute over a horse A trial court improperly granted summary judgment in favor of a ranch owner in a declaratory-judgment action brought by woman who claimed to have been given one of the ranch owner’s horses as a gift because the law does not preclude an effective gift of livestock merely because there was no bill of sale and the woman presented evidence that the ranch owner had displayed donative intent and that she had actual possession, the Arizona Court of Appeals, Division One held on June 15. Milner v. Colonial Trust Co., No. CA-CV 99-0512. SCHOOLS AND EDUCATION IDEA does not preclude Sec. 1983 money damages The individuals with Disabilities Education Act (IDEA) does not preclude a claim for money damages under 42 U.S.C. 1983 because there is no “clear direction” from Congress in either the plain language or legislative history of the IDEA sufficient to rebut the presumption that all relief is available, the U.S. District Court for the Southern District of New York held on June 7. R.B. v. Board of Education of the City of New York, No. 99-3402. SOCIAL SERVICES LAW City’s food stamp system wins summary judgment In a claim brought under 42 U.S.C. 1983 — asserting that a city’s system for investigating joint applications for food stamps and public assistance violated the Food Stamp Act because joint applicants could be denied food stamps for failure to comply with heightened public-assistance verification rules — the city was granted its cross-motion for summary judgment because its process for joint applications furthers the process of determining the reliability of the applicant, the U.S. District Court for the Southern District of New York held on June 12. Roberson v. Giuliani, No. 99-10900. TORTS No distress claim for driver not in same car as deceased Although a driver required psychiatric counseling after he struck another car that had turned into his path, killing the passenger in the other car, under Ohio law he could not collect for negligent infliction of emotional distress because he was not in the same car as the person who was killed, the Ohio Court of Appeals, 10th District held on June 15. Tupps v. Gray, No. 99AP-790. Plaintiff gets costs even in absence of damages award A person injured in a grocery store slip-and-fall is entitled to costs even if the jury found the defendant negligent but did not award money damages, the Maine Supreme Judicial Court held on June 15. Landis v. Hannaford Bros. Co., No. Han-99-674. The court held that the absence of a damages award does not preclude a finding that he or she was a prevailing party under Maine’s rules of civil procedure. The court also held that � 2426 of Maine’s statute on prepayment of actual damages precludes the defendant from offsetting the costs awarded to the plaintiff against the costs it had already paid for medical treatment. Malicious-prosecution suit should have been allowed Two women who brought discrepancies in city commission meeting minutes to the attention of the press should have been allowed to proceed with their malicious-prosecution action against the two commissioners and city attorney who unsuccessfully sued them for defamation, the Tennessee Court of Appeals held on June 16. Kelley v. Tomlinson, M1999-01176-COA-R3-CV. The court found sufficient evidence to raise the question of whether the three city officials had probable cause to bring the defamation suit, including testimony contradicting the city attorney’s account of how he investigated the matter and evidence that the commissioners withheld relevant information from the city attorney. Summary judgment reversed.

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