Research Associates
	Volume 14, Number 6       Our 25th Year   June 2006

“There are two things wrong with most legal writing. One is its style. The other is its content.”

-- Fred Rodell, Dean of Yale Law School

“The language of law must not be foreign to the ears of those who are to obey it.” -- Learned Hand

“[B]ut do not give it to a lawyer’s clerk to write, for they use a legal hand that Satan himself will not understand.” -- Cervantes

DECISIONS OF INTEREST

SUPREME COURT

Jones v. Flowers, No. 04–1477 (U.S.S.C. April 26, 2006)
For purposes of due process, when mailed notice of a tax sale is returned unclaimed, a state must take additional reasonable steps to attempt to provide notice to the property owner before selling his/her property, if it is practicable to do so.  http://laws.lp.findlaw.com/us/000/041477.html
 

Arkansas Dep't of Health & Human Servs. v. Ahlborn, No. 04–1506 (U.S.S.C. May 01, 2006)
Federal Medicaid law does not authorize a state's department of health services to assert a lien on a settlement in an amount exceeding the portion of the tort claimant's settlement constituting reimbursement for medical payments made, and a federal anti-lien provision affirmatively prohibits it from doing so. State third-party liability provisions are unenforceable insofar as they compel a different conclusion.  http://laws.lp.findlaw.com/us/000/041506.html
 

Marshall v. Marshall, No. 04–1544 (U.S.S.C. May 01, 2006)
A determination by the Ninth Circuit Court of Appeals that the probate exception applied so as to bar petitioner-Anna Nicole Smith's tortious interference claim is reversed where the Ninth Circuit had no warrant from Congress, or from decisions of the Supreme Court, for its sweeping extension of the probate exception. http://laws.lp.findlaw.com/us/000/041544.html
 

Holmes v. South Carolina, No. 04–1327 (U.S.S.C. May 01, 2006)
A criminal defendant's federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.  http://laws.lp.findlaw.com/us/000/041327.html
 

DaimlerChrysler Corp. v. Cuno, No. 04–1704 (U.S.S.C. May 15, 2006)
In a suit brought by taxpayers alleging that their local and state tax burdens were increased by certain tax breaks for a car manufacturer, a judgment finding that a state tax credit violated the Commerce Clause is vacated where plaintiffs had no standing to challenge the state franchise tax credit. http://laws.lp.findlaw.com/us/000/041704.html
 

Brigham City v. Stuart, No. 05-502 (U.S.S.C. May 22, 2006)
Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. http://laws.lp.findlaw.com/us/000/05502.html
 

SECOND CIRCUIT
Protection & Advocacy For Persons With Disabilities v. Mental Health & Addiction Services, No. 04-1457 (2d Cir. May 05, 2006)

The Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. sections 10801-10851 (2000), grants OPA access to the state hospital peer review records relating to the patients' care. http://caselaw.findlaw.com/data2/circs/2nd/051457p.pdf
 

THIRD CIRCUIT

Couden v. Duffy (May 01, 2006 - No. 04-1732)
Summary judgment for defendants in a civil rights action, involving undercover law enforcement officers' mistakenly identifying plaintiff's son as a fugitive, is reversed in part as to plaintiffs' section 1983 claims against certain defendants and a Bivens claim, where the district court erred in failing to consider the facts in the light most favorable to plaintiffs in its constitutional rights analysis.   http://caselaw.lp.findlaw.com/data2/circs/3rd/041732p.pdf
 

D.C. CIRCUIT COURT OF APPEALS
Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach (May 02, 2006 - No. 04-5350a.pdf)

Where there are no alternative government-approved treatment options, a terminally ill, mentally competent adult patient's informed access to potentially life-saving investigational new drugs determined by the FDA after Phase I trials to be sufficiently safe for expanded human trials is protected under the Due Process Clause. http://caselaw.lp.findlaw.com/data2/circs/dc/045350a.pdf
 

NEW YORK COURT OF APPEALS

Bard v. Jahnke, No. 29 (N.Y. May 02, 2006)
Summary judgment in favor of defendants, in case involving attack on plaintiff by defendants' bull, is affirmed where evidence established that prior to plaintiff's accident, the subject bull had never injured another person or animal or behaved in a hostile or threatening manner.  http://caselaw.lp.findlaw.com/data/ny/cases/app/29opn06.pdf
 

Trevett v. City of Little Falls, No. 103 SSM 8 (N.Y. May 09, 2006)
Dismissal of complaint on the ground that plaintiff had assumed the risk of injury is affirmed where plaintiff, while attempting a lay up, collided in mid-air with a pole supporting a basketball backboard and rim, and the proximity of the pole to the court was open and obvious.  http://caselaw.lp.findlaw.com/data/ny/cases/app/ssm8mem06.pdf
 

MATTERS OF INTEREST

The United States Supreme Court unanimously approved proposed amendments to Federal Rules of Civil Procedure, which address the handling of electronically stored information during discovery. Unless Congress takes steps to prevent their enactment, the new Rules will become effective December 1, 2006. http://krollontrack.com/legalresources/draftrule.aspx
 

BRIEF RELIEF – MATTERS IN PROGRESS

1. New York insurance law, AAIP claim, and conflict with N.J. statutes
2. New York – motion to file late notice of tort claim
3. Georgia – statute of limitations as to criminal matters; application of discovery rule
4. Preparation of complaint and order to show cause as to real estate issues
5. Motion to suppress evidence by wife in child pornography matter