Research Associates
	Volume 12, Number 10       Our 23rd Year   October 2004

“A man may learn wisdom even from a foe.”
---Aristophanes

“Freedom is not worth having if it does not include the freedom to make mistakes.”

---Mahatma Gandhi

DECISIONS OF INTEREST

BANKRUPTCY COURT NORTHERN DISTRICT N.Y.

IN RE BUSCH, 02-18149
A man who sexually harassed an employee can escape liability through bankruptcy because there's no proof that his conduct, though "deplorable," was meant to cause psychological or economic harm. The Court said that its finding results in a "grave injustice" but that the outcome was dictated by the Supreme Court's Geiger decision.

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

2ND CIRCUIT
KRAUSE v. WELLS FARGO, 03-7665
Lenders who, at closing, charge home buyers marked-up fees for services provided by third parties can be sued under federal law, the Court has ruled. Homeowners charged they were the victims of overcharges by Wells Fargo directly and of markups that Wells Fargo charged for services provided by a third party.

The Court split from its sister circuits in finding a cause of action for such markups under the Real Estate Settlement Procedures Act.

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

3RD CIRCUIT

BRIGHT v. WESTMORELAND
Federal judges must write their own opinions and cannot simply sign an opinion that was "ghostwritten" by lawyers, the 3rd U.S. Circuit Court of Appeals has ruled. The unanimous three-judge panel issued a stiff rebuke to a U.S. District Judge of the Western District of Pennsylvania after concluding that defense lawyers had submitted a "proposed opinion" and that Schwab adopted it "nearly verbatim" as his own.

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

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
 

8TH CIRCUIT

WIGGS v. SIOUX FALLS SCHOOL (09/03/04 – No. 03-2956, 03-3107)
Plaintiff-teacher’s participation in after-school activities held by a Christian club did not justify defendant-school district’s ban on her participation where plaintiff’s association with the club constituted private speech and did not put school at risk of violation the Establishment Clause.  http://caselaw.lp.findlaw.com/data2/circs/8th/032956p.pdf
 

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
 

U.S. DISTRICT OF COLUMBIA

CIRCUIT COURT OF APPEALS
IN RE SEALED CASE (08/31/04 - No. 03-7021)
The district court erred by ordering production of plaintiff's medical records without determining whether any are subject to the federal psychotherapist privilege, and without weighing the probative value of the non-privileged records against the extent of the intrusion into plaintiff's privacy interests.  http://caselaw.lp.findlaw.com/data2/circs/dc/037021a.pdf

MATTERS OF INTEREST

EDWARD LAZARUS, “The Crucial Criminal Cases that Will Start the New Supreme Court Term: Testing the Federal Sentencing Guidelines' Constitutionality”

Will the Federal Sentencing Guidelines have to be completely overhauled and, if so, is this a good thing? Lazarus comments on these issues – which are raised by two crucial cases that the Supreme Court will hear as well as a blockbuster decision the Court issued last Term.

Lazarus discusses what we can, and cannot, expect from a federal sentencing system -- and how much discretion judges and prosecutors, respectively, ought to have in sentencing.

http://writ.news.findlaw.com/lazarus/20040902.html
 

DOCUMENTS OF INTEREST
LEROY CARHART, M.D., ET AL. v. JOHN ASHCROFT (September 8, 2004)
In a 474-page opinion, a third federal judge rules that the Partial-Birth Abortion Ban Act is unconstitutional "because it does not allow, and instead prohibits, the use of the procedure when necessary to preserve the health of a woman." http://news.findlaw.com/hdocs/docs/abortion/carhartash90804opn.pdf

STERNBERG v. CARHART (2000)
The U.S. Supreme Court opinion that Judge Casey held "remains the law of the land."
http://laws.findlaw.com/us/530/914.html
 

BRIEF RELIEF MATTERS

1. New York – motion and brief to extend time to serve summons and complaint per CPLR 306-A
2. New York – motion and brief for summary judgment against subcontractor
3. New York – opposition to motion to dismiss due to statute of limitations in malpractice due to continued representation
4. New York – criminal double jeopardy matter
5. District of Columbia – research regarding use of trust to avoid wife’s election against estate
6. Florida – attorney’s fees in opposing matrimonial motion to enforce settlement agreement brought in bad faith
7. Florida – withdrawal of attorney and period for client to substitute