Research Associates
	Volume 13, Number 8       Our 24th Year   August  2005

“There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and the human limitations of the jury system cannot be ignored.”

--- Justice Brennan in Bruton v. United States, 391 U.S. 135 (1968)

“Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it.”

--- Mark Twain, author and humorist (1835 – 1910)

DECISIONS OF INTEREST

SUPREME COURT

Kelo v. City of New London, No. 04-108 (U.S.S.C. June 23, 2005)
Defendant-City's proposed disposition of plaintiff's property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution. http://laws.findlaw.com/us/000/04-108.html

Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Serv., No. 04-277 (U.S.S.C. 6/27/05)
The FCC's conclusion, finding that broadband cable modem companies are exempt from mandatory common-carrier regulation, is a lawful construction of the Communications Act under Chevron v. NRDC, 467 U.S. 837 (1984), and the Administrative Procedure Act. http://laws.findlaw.com/us/000/04-277.html

Town of Castle Rock v. Gonzales, No. 04-278 (U.S.S.C. June 27, 2005)
An individual who has obtained a state-law restraining order does not have a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated. http://laws.findlaw.com/us/000/04-278.html

McCreary County v. ACLU, No. 03-1693 (U.S.S.C. June 27, 2005)
A county's manifest objective may be dispositive for determining whether a display of the Ten Commandments in courthouses violates the Establishment Clause. http://laws.findlaw.com/us/000/03-1693.html

Van Orden v. Perry, No. 03-1500 (U.S.S.C. June 27, 2005)
The Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. http://laws.findlaw.com/us/000/03-1500.html

SECOND CIRCUIT

Morenz v. Wilson-Coker, No. 04-4107 (2d Cir. July 14, 2005)
Plaintiff cannot be found ineligible for Medicaid on account of his and his spouse's combined assets since he had effected a valid assignment of spousal support rights to the State of Connecticut. http://caselaw.lp.findlaw.com/data2/circs/2nd/044107p.pdf

THIRD CIRCUIT

McGreevy v. Stroup, (06/28/05 - No. 03-4624)
In an employment discrimination suit, judgment in favor of defendant-employer is reversed where a reasonable jury could find that defendant's adverse employment action was in retaliation for the exercise of plaintiff's First Amendment rights. http://caselaw.lp.findlaw.com/data2/circs/3rd/034624p.pdf

NEW YORK APPELLATE DIVISION

Matter of Yadiel Roque C, 793 N.Y.S.2d 857 (4th Dept 2005)
Respondent appealed from an order adjudicating him to be a juvenile delinquent, contending that he was denied a fair trial by the court's intrusive conduct during the fact-finding hearing. The court reviewed it in the interest of justice, and reversed the order. It held that although a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on 'the function or appearance of an advocate.”

For copy of opinion, contact RESEARCH ASSOCIATES jmf@researchassociates.net

NEW YORK COURT OF APPEALS

Harner v. County of Tioga, 119 (N.Y. 6/30/05)
Defendant-county provided plaintiff-property owner constitutionally adequate notice of a foreclosure proceeding even though it took no steps to obtain an alternative address when its notices sent by certified mail were returned "unclaimed."  http://caselaw.lp.findlaw.com/data/ny/cases/app/119opn05.pdf

MATTERS OF INTEREST

Vikram David Amar and Akhil Reed Amar, “What Are the Rules and Standards in the Judicial Appointments Game? With a Supreme Court Nomination on the Horizon, the Stakes Are High”

Amar and Amar discuss the rules and standards that they argue ought to govern the process by which Presidents vet and nominate, and Senators vet and confirm, Supreme Court nominees. They consider the "advice and consent" power in the context of the structure of the entire Constitution to derive the rules by which, they say the game ought to be played.

http://writ.news.findlaw.com/amar/20050708.html

BOOK REVIEW

Noah S. Levitt, “Establishing Limits: A Review of Two Books on How Religion and Law Co-exist in America”

Leavitt weighs in on two recent books that make different arguments about how to navigate the difficult boundary between our Constitution's Free Exercise Clause, which establishes the right to the free exercise of religion, and its Establishment Clause, which prohibits the government from acting to establish a religion. The books are Kent Greenawalt's Does God Belong in Public Schools? and Marci Hamilton's God vs. the Gavel: Religion and the Rule of Law. As Leavitt explains, Greenawalt and Hamilton take very different views on the Religion Clauses -- a situation all the more interesting because Hamilton's views have evolved from some that were more similar to those Greenawalt still holds.

http://writ.news.findlaw.com/books/reviews/20050624_leavitt.html

MATTERS IN PROGRESS

1. Removal of executor in a New York estate.
2. Evidence issue – exclusion of police testimony when at variance with his written report.
3. Complaint to discharge old mortgage.
4. Complaint for hospital and medical malpractice and related causes of action.
5. Appellate Division appeal on permanency of injury.
6. Federal District Court–opposition to motion to dismiss for failure to serve summon on time and statute of limitation issue.