Research Associates
	Volume 14, Number 1       Our 25th Year   January 2006

“Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing God’s service when it is violating all his laws.” -- John Quincy Adams

“If you think that you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind.” -- Henry C. Blinn

“Common sense often makes good law.” -- William Orville Douglas

DECISIONS OF INTEREST

SUPREME COURT

Martin v. Franklin Capital Corp., No. 04–1140 (U.S.S.C. December 07, 2005)
Upon remand of a case to state court, absent unusual circumstances, attorney's fees should not be awarded under 28 U.S.C. section 1447(c) when the removing party has an objectively reasonable basis for removal; conversely, where no objectively reasonable basis exists, fees should be awarded. http://laws.lp.findlaw.com/us/000/041140.html

Lockhart v. US, No. 04–881 (U.S.S.C. December 7, 2005)
The United States may offset Social Security benefits to collect a student loan debt that has been outstanding for over 10 years. http://laws.lp.findlaw.com/us/000/04881.html

1ST CIRCUIT

Whitfield v. Melendez-Rivera (12/06/05 - No. 04-1217, 04-1218, 04-1219)
Jury verdict and award in a civil rights suit brought under 42 U.S.C. section 1983 involving a police shooting is vacated as to the liability of the municipal and supervisor defendants on grounds of qualified immunity, and conditionally vacated as to the compensatory damage awards for plaintiffs. http://laws.lp.findlaw.com/1st/041217.html
 

2ND CIRCUIT

Omnipoint Communications, Inc. v. City of White Plains, No. 04-3286 (2d Cir. 12/02/05)
Grant of summary judgment for plaintiff on claims of violations of the Federal Telecommunications Act arising from defendant's denial of a permit to build a communications tower on a golf course is reversed where substantial evidence supported the decision to deny the permit.
http://caselaw.lp.findlaw.com/data2/circs/2nd/043286p.pdf

3RD CIRCUIT

U.S. v. Extreme Assocs., Inc. (12/08/05 - No. 05-1555)
District court's dismissal of an indictment against defendant and striking down of statutes criminalizing the commercial distribution of obscene materials is reversed where applicable Supreme Court precedent has repeatedly upheld the constitutionality of federal statutes regulating the distribution of obscenity.
http://caselaw.lp.findlaw.com/data2/circs/3rd/051555p.pdf

6TH CIRCUIT

Untalan v. City of Lorain (12/07/05 - No. 04-4489)
Summary judgment pursuant to a finding of qualified immunity for defendant, a police officer, and subsequent dismissal of claims against municipal defendant are affirmed in a 42 U.S.C. section 1983 civil rights case arising out of a fatal shooting by police. http://caselaw.lp.findlaw.com/data2/circs/6th/044489p.pdf
 

N.Y. SUPREME COURT

Woods v. Kittykind
The outcome of a yearlong custody battle over a lost cat -- initiated by the cat's original owner against an animal-rescue agency and, subsequently, the cat's new owner -- will hinge on the requirements of the 1894 New York City Dog License Law, a Manhattan judge has ruled. Under the law, "a person claiming a dog or cat which was lawfully seized is entitled to resume possession only if the animal is claimed within 48 hours of the time it was seized," the judge wrote.

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

Federal District Court - California

Video Dealers v. Schwarzenegger
California violent video game law held unconstitutional "California's new law regulating access by minors to violent video games was preliminarily enjoined on the grounds that it violates the First Amendment. The new law would have gone into effect on January 1.

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

MATTERS OF INTEREST

MUST PUBLIC SCHOOLS ALLOW WORSHIP IF THEY ALLOW SOCIAL AND CIVIC MEETINGS? A NEW YORK FEDERAL COURT SAYS YES, BUT THE ESTABLISHMENT CLAUSE SAYS NO

By Marci Hamilton

Hamilton argues that a New York federal district court judge erred in holding that a public school could not constitutionally forbid a church to hold its weekly meeting there on Sundays, in light of its allowing secular organizations to hold their meetings at the school. Hamilton argues that this is a case where the Establishment Clause justifies treating religious and secular speech differently, for, she contends, the school will likely be perceived by students as endorsing the church that it is hosting.

http://writ.news.findlaw.com/hamilton/20051201.html
 

WARRANTLESS WIRETAPPING: WHY IT SERIOUSLY IMPERILS THE SEPARATION OF POWERS, AND CONTINUES THE EXECUTIVE'S SAPPING OF POWER FROM CONGRESS AND THE COURTS

By Edward Lazarus

Lazarus puts the scandal over President Bush's warrantless wiretapping order in context -- arguing that it fits into a general practice by which the current Executive has bypassed Congress and the federal courts based on an expansive interpretation -- supplied by its own Office of Legal Counsel -- of its own power. Lazarus contends that this practice deals a severe blow to the separation of powers our Constitution mandates.

http://writ.news.findlaw.com/lazarus/20051222.html

BRIEF RELIEF - MATTERS IN PROGRESS

1. New York appeal issue of continued representation in matrimonial action.
2. New York statute of limitations on creditor’s claim and procedure for demand of asset inventory.
3. Massachusetts issue of homeowners’ insurance and failure of company to pay additional living expense, including First Circuit cases.
4. Virginia - obtaining information regarding will, health care proxy and springing power of attorney.
5. Research regarding issue of cultural diversity and medical malpractice.