"Even when laws have been written down, they ought not always to remain unaltered." - Aristotle

"Laws and institutions must go hand in hand with the progress of the human mind." - Sir Francis Bacon

DECISIONS OF INTEREST

FIRST CIRCUIT Barrett v. U.S. (09/07/06 - No. 05-1905)
Dismissal of claims arising out of the death of plaintiff's husband at the hands of FBI informants is affirmed where plaintiff failed to exhaust her administrative remedies for her Federal Tort Claims Act claim against the government and plaintiff's Bivens and wrongful death suits were barred by the statute of limitations. http://laws.lp.findlaw.com/1st/051905.html

SECOND CIRCUIT Green v. City of N.Y., No. 04-1006 (2d Cir. October 05, 2006)
In case involving taking plaintiff, who suffered from ALS, against his will to defendant hospital giving rise to allegations of disability discrimination, civil rights violations, and state torts, summary judgment is vacated as to:
1) ADA claim against defendant city;
2) finding of qualified immunity on plaintiff's Fourth Amendment seizure claim against individual defendant, fire department lieutenant;
3) Fourth Amendment excessive force claim;
4) New York Human Rights Law claim against the city and hospital defendants;
5) assault and battery claims against defendant city.
http://caselaw.lp.findlaw.com/data2/circs/2nd/041006p.pdf

THIRD CIRCUIT

Petruska v. Gannon Univ. (09/06/06 - No. 05-1222)
The circuit court adopts the "ministerial exception" doctrine and holds that it applies to bar any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions. http://caselaw.lp.findlaw.com/data2/circs/3rd/051222p.pdf

US v. Delfin-Colina, No. 05-2127 (3d Cir. September 22, 2006)
The Terry reasonable suspicion standard applies to routine traffic stops. A conviction for transportation of an illegal alien is affirmed over a claim of erroneous denial of a motion to suppress evidence obtained from a traffic stop. http://caselaw.lp.findlaw.com/data2/circs/3rd/052127p.pdf

SEVENTH CIRCUIT

 U.S. v. Harris (09/27/06 - No. 05-3808)
Conviction for possession with intent to distribute more than fifty grams of crack is reversed where defendant made a substantial preliminary showing that the search of his home was unlawful pursuant to the Supreme Court's decision in Franks, which entitled him to a hearing to challenge the veracity of the affidavit used to procure the search warrant. http://caselaw.lp.findlaw.com/data2/circs/7th/053808p.pdf

NINTH CIRCUIT

 Sanchez v. County of San Diego (09/19/06 - No. 04-55122) San Diego County's Project 100%, which requires all welfare applicants to consent to a warrantless home visit as a condition of eligibility, does not violate the United States Constitution, the California Constitution, or California welfare regulations. http://caselaw.lp.findlaw.com/data2/circs/9th/0455122p.pdf

NEW YORK COURT OF APPEALS 

Catholic Charities of the Diocese of Albany v. Serio, No. 110 (N.Y. October 19, 2006)
Legislation requiring health insurance policies that provide coverage for prescription drugs to include coverage for contraception is valid, as applied, over claims by plaintiffs, faith-based organizations, that the legislation violates the Free Exercise Clauses of the New York and U.S. Constitutions, and the Establishment Clause. http://caselaw.lp.findlaw.com/data/ny/cases/app/110opn06.pdf

Gorghan v. DeAngelis, No. 109 (N.Y. October 19, 2006)
Double-jeopardy does not bar petitioner's retrial in a rape case where, although a prosecutor's misconduct was deplorable, the Appellate Division correctly found that it was motivated by an intent to secure a conviction, not to provoke a mistrial motion, and thus petitioner was entitled only to the ordinary remedy for harmful trial misconduct -- a new, fair trial -- and not dismissal of the indictment. http://caselaw.lp.findlaw.com/data/ny/cases/app/109opn06.pdf

MATTERS OF INTEREST 

N.Y.  Judge Rebuffs McDonald's Motion to Dismiss Deceptive Ad Claims Fast-food giant McDonald's will have to continue defending a lawsuit claiming it engaged in deceptive advertising about the nutritional benefits of its products. Southern District of New York Judge has refused to grant the company's latest motion to dismiss, saying that parents of children who are obese and suffered other health problems -- allegedly because of McDonald's food -- provided enough specific examples of allegedly misleading advertising to allow the suit to go forward. http://www.law.com/jsp/article.jsp?id=1158829528701

N.Y. BAR OKS OVERSEAS OUTSOURCING
New York lawyers may ethically contract with overseas non-lawyers to perform legal support services such as legal research, document review and drafting of pleadings or legal memoranda, according to a recent ethics opinion issued by the Association of the Bar of the City of New York. In giving its seal of approval to a practice that is becoming increasingly common, the bar said that lawyers who outsource legal work must nonetheless follow strict ethical guidelines. . Although some jurisdictions have held that any work performed by a non-lawyer under the supervision of an attorney is not the unauthorized practice of law, the committee did not go that far. It found proper supervision to be the key consideration. Attorneys must use their professional skill to set the scope of the outsourced work and review the completed work product to ensure quality.

BRIEF RELIEF - MATTERS IN PROGRESS

1. N.C. - Statute on salvage vehicles.
2. Florida - Matrimonial-issues as to ownership of residence purchased before marriage.
3. N.Y. - Cases on gun license issue and constitutionality of prohibition of licensee carrying gun in N.Y.C.
4. Illinois - Law as to interpretation of insurance policy and additural insured.
5. N.Y. - Application for extension of tort notice required against public entity.
6. Appellate Brief and Appendix
7. Draft interrogatories, complaint, order to show cause.