Research Associates
	Volume 12, Number 11       Our 23rd Year   November 2004

“I made three arguments in every case. First came the one that I planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I though of after going to bed that night.” Advocacy Before the Supreme Court, 37 A.B.A.J. 801, 803 (1951).

--- U.S. Supreme Court Justice Jackson

DECISIONS OF INTEREST

2nd Circuit
KRUSE v. WELL FARGO HOME MORTGAGE, INC., No. 03-7665 (2d Cir. September 10, 2004)
The district court erred in granting defendants' motion for judgment on the pleadings where plaintiffs sufficiently alleged a cause of action when they asserted that defendants' billing practice of marking up the fee for settlement services violated the Real Estate Settlement Procedures Act. http://caselaw.lp.findlaw.com/data2/circs/2nd/037665p.pdf

PETROSINO v. BELL ATLANTIC, No. 03-7366, 03-7708 (2d Cir. September 29, 2004)
Summary judgment against plaintiff's claim of a gender-hostile work environment is reversed where the totality of the evidence would permit a reasonable jury to conclude that plaintiff was the victim of sexual harassment. http://caselaw.lp.findlaw.com/data2/circs/2nd/037366p.pdf

3rd Circuit

The Legal Intelligencer

A woman who lost her job after suffering kidney failure can sue under the Americans with Disabilities Act because "cleansing the blood and processing bodily waste" is a "major life activity" under the ADA, the 3rd Circuit has ruled. Citing a 1998 U.S. Supreme Court ruling, 3rd Circuit Judge Michael Chertoff said the lesson of Bragdon is that the "touchstone" for deciding what qualifies as a major life activity "is not publicity or frequency, but importance to the life of the individual."  http://www.law.com/jsp/article.jsp?id=1097097857290
 

6th Circuit

PARKS v. FINAN (09/29/04 - No. 03-3848)
Defendant's scheme, requiring a permit for speeches and public gatherings on the state capitol grounds, is invalid with respect to individuals where it is a substantially overbroad restriction of individual speech in violation of the First Amendment. http://laws.findlaw.com/6th/033848.html
 

9th Circuit

DREAM PALACE v. COUNTY OF MARICOPA (09/27/04 - No. 00-16531)
In a suit to determine whether a local ordinance imposing licensing and operating regulations on adult entertainment establishments violated the First Amendment, the invalid portions are severable from the remainder, and the prohibition on specified sexual activity is the only portion that should be enjoined.  http://caselaw.lp.findlaw.com/data2/circs/9th/0016531p.pdf

New York Court of Appeals
 

PEOPLE v. HENRIQUEZ, No. 121 (N.Y. October 19, 2004)
Defendant's Sixth Amendment right to a fair trial was not violated when his trial was allowed to proceed even after defendant refused to permit his assigned counsel to participate in his defense and declined to represent himself. http://caselaw.lp.findlaw.com/data/ny/cases/app/121opn04.pdf
 

DOCUMENTS OF INTEREST

GOV. JEB BUSH v. MICHAEL SCHIAVO, GUARDIAN OF THERESA SCHIAVO (September 23, 2004)

Florida's Supreme Court rules that the Florida Legislature's Passage of "Terri's Law," and Gov. Bush's executive order as applied to Terry Schiavo, was unconstitutional, since it "resulted in an executive order that effectively reversed a properly rendered final judgment" by "encroach[ing] on the power that has been reserved for the independent.”

Florida Supreme Court opinion:

http://news.findlaw.com/hdocs/docs/schiavo/flsct92304opn.pdf
 

BOOK REVIEW

Noah Leavitt, “Have America's Anti-Terror Laws Destroyed Individual Rights? A Review of Elaine Cassel's The War on Civil Liberties”

Leavitt reviews a new book on civil liberties in an age of terrorism, by attorney and author Elaine Cassel. Leavitt lauds Cassel's book for its adept explanation and analysis of complex anti-terror laws, court and plea bargaining developments, and law enforcement tactics since 9/11.

The book raises provocative questions about whether the recent expansion of executive power will be a permanent one -- and whether the war on terror also encompasses other, far more troubling kinds of wars.

http://writ.news.findlaw.com/books/reviews/20040910_leavitt.html

MATTERS OF INTEREST

“Why the Court Was Right to Declare a USA Patriot Act Provision Dealing with National Security Letter Procedures Unconstitutional”

Ramasastry discusses the historic first judicial decision to strike down part of the USA Patriot Act. The provision at issue involving the issuance of National Security Letters – subpoenas signed by FBI agents but not reviewed by a judge -- to Internet Service Providers and email service providers.

http://writ.news.findlaw.com/ramasastry/20041013.html

BRIEF RELIEF MATTERS

1. New York – complaint for collection of commercial debt.
2. New York - complaint against employee who embezzled funds for interference with business.
3. Florida – issue of sale of house pendente lite before divorce.
4. Research on Rule 11 motion in Federal Court for sanctions against attorney.
5. District of Columbia – issue of establishment of trust and effect on equitable distribution.