Research Associates
	Volume 12, Number 9       Our 23rd Year   September 2004

“If discrimination based on race is constitutionally permissible when those who hold the reins can come up with “compelling” reasons to justify it, then constitutional guarantees acquire an accordionlike quality.”
---Justice William O. Douglas

“Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us?”
 ---Justice William O. Douglas

DECISIONS OF INTEREST

U.S. DISTRICT OF COLUMBIA

CIRCUIT COURT OF APPEALS

IN RE SEALED CASE, No. 03-7021 - 8/31/04
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

2ND CIRCUIT

PIERCE v. SULLIVAN WEST CENTRAL SCH. DIST., No. 03-9292 (2d Cir. August 11, 2004)
Defendant-school's regulation which allows for "release time" from public schools for religious instruction does not violate the Establishment Clause of the First Amendment. http://caselaw.lp.findlaw.com/data2/circs/2nd/039292p.pdf
 

MAXWELL v. CITY OF NEW YORK, No. 03-0245 (2d Cir. August 12, 2004)
Plaintiff successfully appealed summary judgment against her claim of excessive force in the course of an arrest where plaintiff's account of what occurred during her arrest is a triable issue of fact that a jury should assess. http://caselaw.lp.findlaw.com/data2/circs/2nd/030245p.pdf
 

MARTHA GRAHAM SCH. v. MARTHA GRAHAM CTR., No. 02-2451 (2d Cir. August 18, 2004)
In a case concerning copyright and contract issues relating to choreographed dances, the work-for-hire doctrine applies to works created by the principal employee of a corporation. http://caselaw.lp.findlaw.com/data2/circs/2nd/029451p.pdf
 

3RD CIRCUIT

It's not uncommon for an Appellate Court to remand a case and order that a trial judge cross a "t" or dot an "i”, but in a pair of recent decisions the Court took their finger-wagging one step further, faulting lawyers for failing to speak up at the time of a lower court's mistake. Lawyers should point out errors on the spot. The Circuit Court took a harsh tone in one case, stating, "Counsels' failures engender needless appeals and waste of time and funds."

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

RUIZ v. NEW GARDEN TOWNSHIP, No. 02-4434 (3d Cir. July 26, 2004)
The district court's order to enjoin defendant from enforcing a zoning enforcement notice, that would have resulted in the eviction of plaintiffs, is reversed because plaintiffs' leases were not a protectible property interest, and, as a result, they were not afforded a constitutional guarantee of notice before their leases were terminated. http://caselaw.lp.findlaw.com/data2/circs/3rd/024434p.pdf

BUCKS COUNTY DEPT. OF MENTAL HEALTH v. COMMONWEALTH OF PENNSYLVANIA, No. 02-3919 (3d Cir. August 18, 2004)
Under the Individuals with Disabilities in Education Act, where a trained service provider is not available and the parent stepped in to learn and perform the duties left vacant, reimbursement for time spent in providing therapy is appropriate relief.  http://caselaw.lp.findlaw.com/data2/circs/3rd/023919p.pdf
 

DOCUMENTS OF INTEREST

HEATHER ANDERSEN v. KING COUNTY 8/4/04

A Seattle judge rules that same-sex marriages are legal in the state of Washington.
http://news.findlaw.com/hdocs/docs/glrts/andrsnkng80404opn.pdf
 

The Original Complaint
http://news.findlaw.com/hdocs/docs/glrts/andrsnsims30804cmp.pdf
 

MATTERS OF INTEREST

ANITA RAMASASTRY, “Stores That Offer Loyalty Cards Have a Duty to Notify Customers of Product and Safety Recalls?”
Ramasastry discusses an interesting new Washington state case that raises the issue of what duty a company has to warn its customers of known and certain risks as to the products it sells. The case arose when a consumer discover that the ground beef she and her family had eaten, had been recalled by the U.S. Department of Agriculture because of the risk it might carry Mad Cow Disease. The consumer says the grocery store where she bought the meat should have warned her of the recall -- especially since, due to her "loyalty" card with the store, it had her name, address, and purchasing records on hand. http://writ.news.findlaw.com/ramasastry/20040805.html
 

VIKRAM AMAR, “Trying to Make Sense of the Nonsensical: The Marriage Protection Act Bill Passed by the House of Representatives”
Amar discusses the constitutionality and wisdom of the Marriage Protect Act (MPA) bill that was recently passed by the House – but has not yet become law. The MPA's intention is to resolve the same-sex marriage debate by ensuring that the Defense of Marriage Act -- which purports to allow states to refuse to recognize each other's same-sex marriages -- cannot be constitutionally challenged.  http://writ.news.findlaw.com/amar/20040806.html

“Cell Towers Lead to Litigation Static”

The National Law Journal
A growing public resistance to cellular towers has landed the cell phone industry in a legal morass, where cellular providers are either suing over the right to exist, or being sued for existing. Lawyers say dozens of suits against the wireless industry are pending in federal courts in at least six states. The cases involve everything from bird fatalities to health concerns to declining property values. And that's just the start.  http://www.law.com/jsp/article.jsp?id=1090180312814

BRIEF RELIEF MATTERS

1. New York – opposition to Article 78 proceeding alleging improper actions of mayor and council.
2. New York ability of New York resident to obtain and discover identity of natural parents and forms.
3. Florida – dock owner/marina liability for injuries of tenant on houseboat at marina.
4. First Amendment and right to publish offensive materials.
5. Employee duty of loyalty, commissions, custom and usage.