Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, August 1, 2012

Missouri Supreme Court: Med Mal Recovery Cap is Unconstitutional

On Tuesday, the Missouri Supreme Court that legislative caps on the amount an injured plaintiff may recover for non-economic damages in a medical malpractice case violate the state's constitutional right to trial by jury.  Watts v. Lester E. Cox Medical Centers, No. SC91867 (Mo. July 31, 2012).  The court decided the case 4-3.

The Missouri legislature previously passed a law limiting the recovery for non-economic damages in a medical malpractice case to $350,000.  Deborah Watts brought suit against her physician on behalf of her child, Naython Kayne Watts, for brain injuries sustained by the child during pre-natal care and delivery.  A Missouri jury awarded Watts $1.45 million in non-economic damages, however, following the recovery cap law, the trial court reduced the recovery to $350,000. 

The Missouri Supreme Court employed a textual and historical analysis to overturn the recovery limitation law.  Missouri's state consitution, adopted in 1820, guarantees that "the right of trial by jury as heretofore enjoyed shall remain involate..."  The court read the guarantee to mean that if Missouri common law entitled a plaintiff to a jury trial on non-economic damage in a medical negligence action prior to the state consitution being enacted, then Watts had that same right guaranteed in the present.

The court found that Blackstone identified medical negligence as one of "five types of private wrongs" that could be redressed in court, and that English common law allowed plaintiffs so injured to recover non-economic damages.  Further, the court found that Missouri law pre-statehood provided for a jury trial in "all cases of the value of one hundred dollars ... if either of the parties require it."  Because the right to jury trial on non-economic damages in a medical malpractice existed at common law prior to 1820, the court concluded, Watts enjoys a constitutionally guaranteed right to trial by jury on her claim for non-economic damages.

The court's decision overturned Adams by and Through Adams v. Children's Mercy Hospital, 832 S.W.2d 898, 907 (Mo. 1992) which had previously upheld the recovery cap against a similar state constitutional challenge.  The disagreement between Adams and Watts is on whether or not the Missouri right to trial by jury is satisfied by the mere trial before the jury.  Inasmuch as the law allows the jury to hear the evidence and assess damages, Adams concluded, the constitutional guarantee is satisfied even though the recovery cap essentially renders the jury's decision without meaning beyond the cap amount.  The Watts court rejected this interpretation: 

Adams fundamentally misconstrues the nature of the right to trial by jury. While [the Missouri Constitution] sets the constitutional role of the jury, it does so by guaranteeing an individual right to a trial by jury. The application of [the recover cap law] may permit the jury to perform its constitutional role, but it deprives the individual of his or her right to the damages awarded by the jury. The constitutional significance of the jury’s role in determining damages is reflected in the analytical basis for determining whether the right to trial by jury attaches -- if the action is a civil action for damages, then the right to a jury trial attaches and must “remain inviolate.”  Because the constitutional right to a civil jury trial is contingent upon there being an action for damages, statutory limits on those damages directly curtail the individual right to one of the most significant constitutional roles performed by the jury -- the determination of damages. The argument that section 538.210 does not interfere with the right to trial by jury because the jury had a practically meaningless opportunity to assess damages simply “pays lip service to the form of the jury but robs it of its function.”

Citations omitted. 

States continue to return mixed verdicts on state constitutional challenges to recovery cap legislation, typically on textual, historical or structural grounds.

Craig Estlinbaum

August 1, 2012 in Civil Law, Constitutional Law, Interesting Cases, Litigation, Remedies, State Law | Permalink | Comments (0)

Thursday, June 28, 2012

DC Circuit Upholds EPA Gashouse Regulations

In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.

The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority.  The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits.  Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.

The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA.  Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.

The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely.  The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.

Craig Estlinbaum

June 28, 2012 in Administrative Law, Constitutional Law, Federal Law, Interesting Cases, Recent Developments | Permalink | Comments (0)

Wednesday, June 13, 2012

Estreicher on Overturning Obamacare


Sam Estreicher just published another excellent article in the New York Law Journal on June 13, 2012, here. In this relatively short article-especially for Sam, Professor Estreicher outlines the major arguments in support of Obamacare. Namely Congress regulates us all the time and he gives an example of having to wear seat belts. 

Professor Estreicher is clearly concerned that the Supremes may over-turn Obamacare based upon his analysis of the Justices comments during oral argument. 

In any event, what makes health care different is that you do no choose health. Yes, Congress regulates seat belts, but you do not have drive that car. 

Whether this makes a difference for constitutional purposes, we will shortly find out. I hope Professor Estreicher is right.

Mitchell H. Rubinstein

June 13, 2012 in Articles, Constitutional Law | Permalink | Comments (0)

Wednesday, May 30, 2012

7th Holds Laid Off Teachers Due Not Have Due Process Recall Rights


Chicago Teachers Union v. Board of Educ. of the City of Chicago, ____F.3d____ (7th Cir. Apr. 19, 2012), is an interesting case. The Seventh Circuit reversed a district court’s ruling granting the Chicago Teachers Union (CTU) a preliminary and permanent injunction ordering the Chicago Board of Education to rescind its economic layoff of tenured teachers and to promulgate layoff and recall rules for tenured teachers. The panel’s decision to reverse and remand with instructions for the district court to vacate the injunction was based on the responses to questions the panel certified to the Illinois Supreme Court, which determined that Illinois law did not give laid-off teachers substantive rights with respect to rehiring and rights to certain procedures during the rehiring process.



May 30, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Monday, April 9, 2012

Arkansas Supreme Court strikes down law criminalizing consensual relationships between teachers and adult K-12 students

Paschal v. State of Arkansas, No. CR 11-673 (Ark. Mar. 29, 2012), is an interesting case. Now, before anyone gets too emotional about this decision, the court did not approve of relationships between students and teachers. Rather,  in a 4-3 split, it held that that a state law making it a crime for a K-12 teacher to engage in consensual sexual contact with a student who is an adult violates the state constitution. The court’s majority determined that the state constitution recognizes a “fundamental right to privacy implicit in our law” that “protects all private, consensual, noncommerical acts of sexual intimacy between adults.” While the state Supreme court acknowledged that it was possible that the state legislature “intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex,” the majority pointed out the law contained no language indicating such an intent.

Mitchell H. Rubinstein

April 9, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Sunday, April 8, 2012

Reportedly Teacher’s aide challenges Michigan district in arbitration claiming she was suspended for refusing to provide online passwords

According to a news report in the South Bend Tribune, a teacher’s aide is in a legal battle with her school district for suspending her from her position after refusing to give the district access to her Facebook page.  It appears that the matter is headed for arbitration. 

Source: South Bend Tribune, 3/28/12, By Kelli Stopczynski (WSBT TV)

April 8, 2012 in Arbitration Law, Constitutional Law, Current Events | Permalink | Comments (0)

Sunday, March 25, 2012

Rhode Island district court holds that the high school’s display of prayer banner constitutes Establishment Clause violation

Ahlquist v. City of Cranston, ___F.Supp. 2d____ (D. R.I. Jan. 11, 2012), is an interesting case. A federal district court has ordered the immediate removal of a banner displayed on the wall of a high school auditorium on the ground that the display of the banner, which contains a Christian prayer, violates the First Amendment’s Establishment Clause. Relying on the Establishment Clause principle of neutrality in matters of religion, the court analyzed the banner under three different tests (Lemon, endorsement, and coercion) to determine whether its display passed constitutional muster.

Mitchell H. Rubinstein


March 25, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Monday, February 13, 2012

WD Mo Upholds A Dog Sniff At A School Because It Does Not Implicate 4th Amendment

Burlison v. Springfield Pub. Sch., ___F.Supp.2d___ (W.D. Mo. Jan. 25, 2012), is an interesting case. A lower court in Missouri has granted a school district’s and two school administrators’ motion for summary judgment in a suit brought by the parents of two high school students claiming that a drug sweep of the high school by local law enforcement at the behest of the school district constituted a unreasonable search and seizure. The court concluded that that the use of drug sniffing dogs does not implicate the Fourth Amendment. 

Mitchell H. Rubinstein

February 13, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Friday, February 10, 2012

College Student Suspended For Writing About Being Attracted To Professor

Oakland University (near Detroit) reportedly suspended a student for 3 semesters because he wrote in a class assignment that he found his instructors attractive. The course specifically permitted students to write creatively about any topic. In one entry titled "Hot for Teacher," the student tells a story about being worried because he is distracted in class by attractive professors. From the Press Release I saw, nothing vulgar was written. I do not know how many stories were written.

The student has retained a lawyer and is apparently bringing a First Amendment case to challenge his suspension. He is supported by an organization called Foundation For Individual Rights in Education, or "FIRE." You can read more about this bizzare story here.

UPDATE: February 13, 2012

It appears that some of the participants in this matter have chosen to comment. Their comments appear below.  

Mitchell H. Rubinstein

February 10, 2012 in College Professors, Colleges, Constitutional Law, Education Law | Permalink | Comments (29)

Tuesday, January 24, 2012

Colorado district’s decision to limit transgender student to use of staff restrooms sparks debate over equal educational opportunities policy

A Colorado High School transgender student, who was born male but identifies as female, was told that she can only use the staff restrooms at the school, reports the Coloradoan. The student in question, argues she should have the same rights as any student to use the bathroom of her choice.

Source: Coloradoan, 11/16/11, By Sarah Jane Kyle

Mitchell H. Rubinstein

January 24, 2012 in Constitutional Law | Permalink | Comments (0)

Monday, November 14, 2011

2d Cir Upholds Ban Of School District's Use Of Schools For Religious Purposes


Bronx Household of Faith v. Board of Educ. of  the City of New York, No. 07-5291 (2d Cir. Jun. 2, 2010), is a major decision. The Second Circuit held that the New York City Board of Education’s (NYCBOE) policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. Having determined that NYCBOE had created a limited public forum, the majority concluded the policy satisfied the standard that restrictions imposed by the forum be viewpoint neutral and reasonable in light of the purpose served by the forum.

Mitchell H. Rubinstein

November 14, 2011 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Thursday, October 20, 2011

Third Circuit holds Delaware school board’s policy of opening meetings with a prayer violates Establishment Clause


Doe v. Indian River Sch. Dist., ___F.3d____ (3d Cir. Aug. 5, 2011), is an interesting case. The Third Circuit held that a Delaware school board’s policy of opening meetings with a prayer violates the First Amendment’s Establishment Clause. The panel concluded that the constitutional exception established in Marsh v. Chambers, 463 U.S. 783 (1983), for legislative bodies does not apply to school boards. Instead, it determined that ”the traditional Establishment Clause principles governing prayer in public schools” relying on Lee v. Weisman, 505 U.S. 577 (1992).

Mitchell H. Rubinstein


October 20, 2011 in Constitutional Law, Education Law | Permalink | Comments (0)

Tuesday, June 7, 2011

Constitutionality of Georgia’s anti-nepotism law regarding eligibility to serve on local school boards is not subject to strict scrutiny by courts


Grizzle v. Kemp, ____F.3d____(11th Cir. Mar. 8, 2010), is an interesting case. The Eleventh Circuit held that a federal district court erred in issuing a preliminary injunction barring Georgia’s Secretary of State from enforcing a provision in the state law making a person ineligible to serve on a local school board if that person “has an immediate family member sitting on [that] local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system.”  The panel found that the district court erred when it applied strict scrutiny in analyzing the statute’s constitutionality under the Fourteenth Amendment’s Equal Protection Clause and the First Amendment provision guaranteeing freedom of association.

Mitchell H. Rubinstein


June 7, 2011 in Constitutional Law, Education Law | Permalink | Comments (0)

Sunday, April 10, 2011

New Hampshire pledge of allegiance law is constitutional


The issue of the whether the pledge of allegiance is constitutional is not going awayFreedom from Religion Foundation v. Hanover Sch. Dist., ___F.3d____ (1st Cir. Nov. 12, 2010), is the latest case. There, the 1st held that New Hampshire’s law requiring the daily recitation of the pledge of allegiance in the state’s public schools, while allowing students to opt-out of participation, does not violate the First Amendment’s Establishment or Free Exercise of Religion Clauses, or the Fourteenth Amendment’s Equal Protection or Due Process Clauses. The panel concluded that the inclusion of the phrase “under God” in the pledge did not convert the recitation of the pledge from a patriotic exercise to a religious one. It likewise rejected the free exercise claim on the ground that schools are not constitutionally obligated to shield students from mere exposure to ideas that are potentially offensive to the student’s religious beliefs. In regard to the equal protection claim, the panel concluded that the law does “not require different treatment of any class of people because of their religious beliefs.”

Mitchell H. Rubinstein

April 10, 2011 in Constitutional Law | Permalink | Comments (0)

Saturday, February 19, 2011

Hawaii Set To Recognize Civil Unions

Hawaii’s legislature joined six other states Wednesday, approving same- sex civil unions. Governor Neil Abercrombie is expected to signS.B. 232, “Relating to Civil Unions” by February 26, 2011. Five other states, plus the District of Columbia, permit same-sex marriage. Once the legislation becomes law, same-sex couples in Hawaii will be afforded the same rights, benefits and protections provided to married couples under state law.

On January 31, 2011, Illinois Governor Pat Quinn signed S.B. 1716, the “Illinois Religious Freedom Protection and Civil Union Act.” Under that new law, both heterosexual and same-sex couples will be allowed to enter into a civil union. In Washington State, two legislators introduced legislation on Valentines Day to expand the domestic partnership rights already present in the state to allow for same-sex marriage.

Mitchell H. Rubinstein

February 19, 2011 in Constitutional Law | Permalink | Comments (0)

Monday, December 6, 2010

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability

Taylor v Brentwood UFSD, CA2, 143 F.3d 679

A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.

Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.

The court cited with approval Rooney’s arguments that:

1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;

2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and

3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.

The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.

The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.

In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”

The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.

Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 6, 2010 in Constitutional Law, Education Law, Public Sector Employment Law, Recent Developments | Permalink | Comments (0)

Tuesday, September 28, 2010

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction

Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”

James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*

Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 28, 2010 in Constitutional Law, Public Sector Employment Law | Permalink | Comments (0)

Wednesday, August 4, 2010

Breaking News- Judge Overturns Calfornia's Ban Of Gay Marriages

A federal judge in the Northern District of Calif. has held that California's Proposition 8, a voter-approved amendment to the state constitution that prohibited same-sex marriage, violated the Due Process and Equal Protection Clauses of the United States Constitution. A copy of the decision can be found here

Mitchell H. Rubinstein

August 4, 2010 in Constitutional Law | Permalink | Comments (3)

Wednesday, May 19, 2010

Constitutionality of the Mandate of Individual Insurance

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis  analyzes arguments against the mandate brought under the Fifth and Tenth Amendments and explores the sufficiency under the First Amendment of exceptions for certain religious groups. This 29 page document is a must read for anyone involved in possible litigation. The report summary provides:

As part of the Patient Protection and Affordable Care Act, P.L. 111-148, Congress enacted a
provision that requires certain individuals to have a minimum level of health insurance. Covered
individuals who fail to maintain sufficient coverage will be subject to a financial penalty
beginning in 2014. Although the federal government provides health coverage for many
individuals through federal programs such as Medicare, it had never before required individuals
to purchase health insurance. There are various constitutional considerations relevant to the
enactment of this provision. This report provides an analysis of constitutional issues raised by
compelling individuals to purchase health insurance.
This report first analyzes the authority of Congress to pass a law of this nature, as well as how a court could analyze this provision in light of a constitutional challenge based on various
provisions of the Fifth and Tenth Amendments. Finally, this report discusses whether the
exceptions to the individual responsibility requirement to purchase health insurance satisfy First
Amendment freedom of religion protections.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 19, 2010 in Constitutional Law, Employee Benefits Law | Permalink | Comments (0)

Sunday, April 25, 2010

Are Tax Credits To Religious Oriented Schools Unconsitutional?

A March 8, 2010 Op Ed article in the National Law Journal raises the question whether or not tax credits given to religious orientated schools for donations is an unconstitutional establishment of religion under the First Amendment. The article reports on a recent 9th Circuit decision holding that such tax credits are unconstitutional. As the article states:

The validity of tax deductions and credits for donations to educational and religious charities under the U.S. Constitution — including direct benefits to religious entities in the form of tax exemptions — has been settled for decades. But Winn v. Arizona Christian School Tuition Organization, a U.S. Court of Appeals for the 9th Circuit case, defies established precedent and casts a dark cloud over proposed and existing tax credits in states across the nation. The U.S. Supreme Court should grant certiorari and overturn the ruling.

The American Civil Liberties Union of Arizona challenged an Arizona program that allows taxpayers to claim a dollar-for-dollar tax credit up to $500 for contributions to nonprofit organizations that provide scholarships for children to attend better schools. The ACLU claims the credit violates the First Amendment's establishment clause because most taxpayers choose to donate to religious scholarship organizations. Fifty-five scholarship organizations have been established to date. Some organizations fund scholarships for low-income families; others fund particular teaching methods — such as Montessori education — while others serve specific geographic areas. Twenty-five scholarship organizations support particular religious schools. Taxpayers are free to choose among these many organizations — including religious and nonreligious — in making their donations, just as when they make any other charitable contribution. 

Mitchell H. Rubinstein

April 25, 2010 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (0)