Research Associates
	Volume 12, Number 7       Our 23rd Year   July 2004

“In the Supreme Court, the United States government came close to taking the position that there could be no constitutional constraints on the executive.”
--- Samuel Issacharoff, professor at Columbia Law School, The New York Times, 7/4/04

“Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the executive by the rule of law.”
--- Justice John Paul Stevens, The New York Times, 7/4/04

DECISIONS OF INTEREST

U.S. SUPREME COURT

THORNTON v. US, No. 03-5165 (U.S.S.C. May 24, 2004)
When a lawful custodial arrest of an automobile's occupant is made, the Fourth Amendment allows a contemporaneous search of the vehicle's passenger compartment, regardless of whether the officer initiated contact with the arrestee while he was still in the car.
http://laws.lp.findlaw.com/us/000/035165.html

YARBOROUGH v. ALVARADO, No. 02–1684 (U.S.S.C. June 01, 2004)
A state court considered the proper factors and reached a reasonable conclusion that minor defendant was not in custody for Miranda purposes during his police interview. The decision clarified whether police must make concessions when dealing with younger suspects, but left the door open for further challenges based on the age of the accused. http://laws.lp.findlaw.com/us/000/021684.html
 

CITY OF LITTLETON v. Z. J. GIFTS, No. 02-1609 (U.S.S.C. June 07, 2004)
City's adult business license ordinance was found to meet the First Amendment's requirements that such a licensing scheme ensure prompt judicial review of an administrative decision denying a license. http://laws.lp.findlaw.com/us/000/021609.html
 

ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW 02-1624 – June 14, 2004
A father did not have standing to challenge the "under God" portion of the Pledge of Allegiance as violating the Establishment Clause on behalf of his daughter, because he lacked "next friend" status under California Law.  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-1624

AETNA HEALTH INC. v. DAVILA, No. 02-1845 (U.S.S.C. June 21, 2004)
Plaintiff's state causes of action, alleging HMO's failure to exercise ordinary care for the plaintiff's health by failing to cover the cost of certain medical services, was completely preempted by ERISA section 502, and removable to federal court.   http://laws.lp.findlaw.com/us/000/021845.html

HIIBEL v. SIXTH JUDICIAL DIST. COURT OF NEVADA, No. 03-5554 (U.S.S.C. June 21, 2004)
Defendant's conviction for failing to identify himself while detained by a police officer under suspicious circumstances in violation of a state "stop and identify" statute did not violate the Fourth or Fifth Amendments.   http://laws.lp.findlaw.com/us/000/035554.html
 

2ND CIRCUIT

UNIVERSAL ACUPUNCTURE PAIN SERVS. v. QUADRINO & SCHWARTZ, No. 02-9469 (2d Cir. June 02, 2004)
Attorneys are entitled to recover in quantum merit for services rendered to a client in a contingency case where the client discharges the attorneys before the case's completion, even if the client fails to recover any damages. http://caselaw.lp.findlaw.com/data2/circs/2nd/029469p.pdf

3RD CIRCUIT

MCLEOD v. HARTFORD LIFE AND ACCIDENT INS. CO., No. 03-1744 (3d Cir. June 22, 2004)
Plaintiff successfully claimed that she was wrongly denied long-term disability benefits under ERISA, because, though she was treated for symptoms, she was not diagnosed with multiple sclerosis until after the plan took effect and therefore her MS was not a previously existing condition.  http://caselaw.lp.findlaw.com/data2/circs/3rd/031744p.pdf
 

NEW YORK COURT OF APPEALS

HOLTERMAN v. HOLTERMAN, 73 (N.Y. June 10, 2004)
The Supreme Court did not err in declining to adjust defendant's child support obligation to account for the distributive award payments he was obligated to pay plaintiff for her share of the future enhanced earnings attributable to his medical license.  http://caselaw.findlaw.com/data/ny/cases/app/73opn04.pdf
 

MATTERS OF INTEREST

U.S. District Judge William Young criticized the federal sentencing guidelines, saying their rigidity violates due process and limits the authority of judges.

David Yas, editor of Massachusetts Lawyers Weekly, explained, "'What judges have perhaps most strongly detested has been exactly what Judge Young says here, and that is that the Department of Justice acts, in a manner of speaking, as both prosecutor and executioner.'"

http://www.philly.com/mld/inquirer/news/nation/8979820.htm and http://snipurl.com/791d
 

ARTICLES OF INTEREST

“Discovery Unplugged: Should Internal E-Mails Be Privileged Confidential Communications?” Defense Counsel Journal, Volume 70, Number 1, January 2003.

“The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases,” Psychology, Public Policy & Law, Volume 8, Number 4, December 2002.

“Developments in the Law – The Law of Marriage and Family,” Harvard Law Review, Volume 116, Numb 7, May 2003.

“Contracts with Open or Missing Terms under the Uniform Commercial Code and the Common Law: A Proposal for Unification,” Columbia Law Review, Volume 103, Number 1, January 2003.

BRIEF RELIEF MATTERS

1. Effect of Florida Rule 1:540 on motion to set aside order for fraud.
2. Review of documents regarding 99-year lease and title to property where owner and relatives are deceased.
3. Issue of venue and divorce in Florida jurisdiction based on property ownership.
4. New York – failure of court to supply record in Article 78 proceeding.
5. New York - equitable distribution of real property and status of property owned by wife and conveyed into joint names with second husband.
6. Cases on enforcement of settlement in New York and New Jersey.