Research Associates
	Volume 12, Number 6       Our 23rd Year   June 2004

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another.”
--- Simmons v. U.S. 390 US 389 (1968)

“Where rights secured by the Federal constitution are involved, there can be no rule-making or legislation which would abrogate them.”
--- Miranda v. Arizona, 384 US 436 (1966)

“An unconstitutional act is not a law; it confers no rights; it imposes not duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
--- Norton v. Shelby County, 118 US 425 (1885)

DECISIONS OF INTEREST

U.S. SUPREME COURT

TENNESSEE STUDENT ASSISTANCE CORP. v. HOOD, No. 02-1606 (U.S.S.C May 17, 2004)
Bankruptcy court's discharge of a student loan debt guaranteed by a state entity does not implicate the state's Eleventh Amendment immunity; the Court declines to decide whether a bankruptcy court's exercise of personal jurisdiction over a State would be valid under the Eleventh Amendment. http://laws.lp.findlaw.com/us/000/021606.html

GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L.P., No. 02-1689 (U.S.S.C. May 17, 2004)
A party's postfiling change in citizenship cannot cure a lack of subject-matter jurisdiction that existed at the time of filing in a diversity action.  http://laws.lp.findlaw.com/us/000/021689.html

TENNESSEE v. LANE, No. 02-1667 (U.S.S.C. May 17, 2004)
As it applies to the class of cases implicating the fundamental right of access to the courts, Title II of the ADA constitutes a valid exercise of Congress' authority to enforce the 14th Amendment's substantive guarantees. http://laws.lp.findlaw.com/us/000/021667.html
 

U.S. DISTRICT COURT-D.C.

N.Y. STATE BAR v. FTC
Attorneys are not subject to federal privacy laws that govern financial institutions. The ruling follows the FTC's refusal to exempt attorneys from the Gramm-Leach-Bliley Act, which requires banks and credit card companies to notify customers annually of their privacy policies. Attorneys have argued that privilege and ethics rules already govern the relationship between lawyers and clients.

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

NEW YORK COURT OF APPEALS

MAHESHWARI v. CITY OF NEW YORK, 54 (N.Y. May 06, 2004)
Plaintiff, assaulted while distributing pamphlets in a city park during a concert, cannot hold the City and the concert producer liable; the brutal attack was not a foreseeable result of any security breach, and was an independent, intervening criminal act. http://caselaw.lp.findlaw.com/data/ny/cases/app/54opn04.pdf

N.Y. APPELLATE DIVISION

RUDGAYZER v. GRATT
In the first New York appellate ruling on the constitutionality of a federal ban on unsolicited advertising faxes, a court has reversed lower courts and declared the law does not impinge upon First Amendment protections for commercial speech. Citing an 8th Circuit opinion, the court found, although the law forbids ad content's fax transmission to an "unwilling recipient," it leaves open "all other means of conveying the information."

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

AUCLAIR v. BOLDERSON
New York courts lack subject matter jurisdiction to modify an out-of-state child support judgment that was not registered in New York. The Court indirectly addressed forum shopping -- a matter of considerable concern in matrimonial cases involving two federal laws on child support and related issues when the parties live in different states.

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

3RD DEPARTMENT

HUCKABY v. STATE DEPT. OF TAXATION
A Tennessee resident who telecommutes to his New York employer must pay income tax on all his earnings although he spends only a fourth of his time in the Empire State, noting that Huckaby's income is New York-sourced and that he telecommutes for his convenience rather than his employer's.

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

BOOK REVIEW

Anita Ramasastry, “Can Suing -- Not Just Indicting -- Be a Weapon against Terrorists? A Review of Civil Litigation against Terrorism”

Ramasastry assesses a recent collection of essays and other materials that address the question: Can U.S. civil lawsuits be a part of efforts against terrorism? Ramasastry surveys the current state of the law, as described in the essays, and explores the theoretical arguments made by Professor Ruth Wedgwood, and the collection's editor, Professor John Norton Moore. http://writ.news.findlaw.com/books/reviews/20040430_ramasastry.html
 

DOCUMENTS OF INTEREST

THE TAGUBA REPORT

The formerly secret report on the Pentagon's investigation of the U.S. 800th Military Police Brigade's treatment and alleged abuse of prisoners held in Iraq's Abu Ghraib Prison. http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html
 

MATTERS OF INTEREST

National Public Radio

Supreme Court Justice Harry Blackmun spent 24 years on the court, rendering opinions on Roe v. Wade and other influential decisions. Blackmun passed away in 1999, and recently, NPR's was granted access to his papers. Drawing on revelations in these papers and various interviews, this site offers a number of recent radio programs from NPR that hone in on various aspects of Justice Blackmun's time on the court and his various opinions on different cases. A couple of the programs deal with the humor of various fellow judges and the deliberations over the constitutionality of prayer at public school graduations. There are also a number of video clips, including one of Blackmun giving a tour of his Supreme Court chambers and another featuring him speaking about Roe v. Wade. http://www.npr.org/news/specials/blackmun/
 

BRIEF RELIEF MATTERS

1. Opposition to Order to Show Cause for Yellowstone injunction.
2. Requirement in N.Y. will of five day survival of testator to inherit and effects.
3. Manner of collection of judgment in N.Y.
4. Rules as to docketing foreign judgment in Ohio and collection process.
5. Conflict between arbitration and foreclosure of mechanics lien in N.Y.
6. Reply memorandum in Article 78 Proceeding in New York.
7. Preparation of discovery demand and interrogatories in drowning case of infant.