Research Associates
	Volume 14, Number 5       Our 25th Year   May 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

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.” -- Justice William O. Douglas

DECISIONS OF INTEREST

SUPREME COURT

US v. Grubbs, No. 04–1414 (U.S.S.C. 3/21/06)
Anticipatory warrants are not categorically unconstitutional under the Fourth Amendment. Reversal of a district court's denial of a motion to suppress evidence in a child pornography prosecution is reversed where the anticipatory warrant at issue did not violate the Fourth Amendment’s particularity requirement. http://laws.lp.findlaw.com/us/000/041414.html
 

Georgia v. Randolph, No. 04–1067 (U.S.S.C. March 22, 2006)
A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. http://laws.findlaw.com/us/000/04-1067.html
 

SECOND CIRCUIT

Century 21 Dept. Stores v. Diamond State Ins. Co., No. 04-3362 (2d Cir. March 21, 2006)
In an insurance coverage action alleging that the defendant insurer had a duty to defend and indemnify the plaintiff insured in the underlying trademark infringement action, summary judgment for the defendant insurer is vacated where the underlying complaint states a claim bringing it within the embrace of the insurance coverage provided by defendant.  http://caselaw.lp.findlaw.com/data2/circs/2nd/043362p.pdf
 

Cioffi v. Averill Park Bd. of Ed., No. 04-5593 (2d Cir. April 04, 2006)
Grant of summary judgment in favor of school district, school board and municipal defendants is reversed because plaintiff athletic director has shown sufficient factual issues regarding whether defendant abolished his position in retaliation for protected speech he made regarding a high school football hazing incident. http://caselaw.lp.findlaw.com/data2/circs/2nd/045593p.pdf
 

THIRD CIRCUIT

Rolan v. Vaughn, No. 04-4322 (3d Cir. 4/18/06)
Grant of a writ of habeas corpus to defendant in a first-degree murder case is affirmed where under Strickland, defendant's attorney's failure to investigate self-defense witnesses fell below an objective standard of reasonableness, and there was a reasonable probability that but for such failure the result would have been different. http://caselaw.lp.findlaw.com/data2/circs/3rd/044322p.pdf

EIGHTH CIRCUIT

La Tour v. City of Fayetteville (04/06/06 - No. 03-2824)
Orders favoring defendants in a 42 U.S.C. section 1983 challenge to the constitutionality of a municipal ordinance prohibiting plaintiff from displaying a flashing or blinking electronic sign are affirmed where the ordinance was content-neutral on its face, was narrowly tailored to serve a significant government interest in aesthetics and traffic safety, and allowed ample alternative channels for communication of plaintiff's messages.  http://caselaw.lp.findlaw.com/data2/circs/8th/032824p.pdf
 

NEW YORK COURT OF APPEALS

God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, No. 39 (N.Y. March 23, 2006)
An arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the parties intended to be bound by the contract. http://caselaw.lp.findlaw.com/data/ny/cases/app/39opn06.pdf
 

CONN. FEDERAL COURT

The federal court in Connecticut recently barred two lawyers from using their own names in the name of their firm. The name of their New London firm, Suisman & Shapiro, formed in 2004, violated the trademark of another, much-older New London firm Suisman, Shapiro, Wool, Brennan, Gray & Greenberg.

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

MATTERS OF INTEREST

Legal Times
The Supreme Court adopted a rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts. Currently, four federal circuits ban the citation of unpublished opinions outright, while six others discourage it. http://www.law.com/jsp/article.jsp?id=1144845716431
 

New York Law Journal
A retired attorney living in Florida has convinced an administrative law judge that New York State has no right to collect personal income tax on the retirement monies he receives from firm profits. The ruling established for the first time anywhere, that a 1996 federal law barring state taxation of retirement income paid to non-residents applies not only to accounts set aside for retirees but also those linked to partnership profitability.  http://www.law.com/jsp/article.jsp?id=1143030599225
 

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

THE REAL CHIEF JUSTICE ROBERTS: CONCILIATOR OR DIVIDER?
A recent Fourth Amendment holding indicates that he may be more like Rehnquist than previously thought. http://writ.news.findlaw.com/lazarus/20060330.html
 

BRIEF RELIEF – MATTERS IN PROGRESS

1. New York – default judgment rules and preparation of pleadings
2. New York – enforcement of settlement agreement
3. New York – cases on excessive restitution
4. Nevada – statutes on compensation of transfer
5. Florida – spouse entitlement to a “special interest” in premarital property
6. Florida – husband’s right to share in family trust of wife established before marriage
7. Memorandum on issue to suppress evidence and wrongful search