March 18, 2006
Case Law Development: Sixth Circuit Federal Appeals Court Approves Tennessee Pro-Life-Only License Plate Plan – Rejects Fourth Circuit Court of Appeals Analysis
The United States Court of Appeals for the Sixth Circuit ruled on Friday 2-1 that Tennessee can offer a pro-life specialty license plate even though it does not offer a pro-choice license plate to state drivers. The lawsuit, which was filed by the American Civil Liberties Union, contended that the issuance of only pro-life plates signaled government endorsement of that view.
Judge Rogers, in rejecting the challenge, wrote for the majority on the panel that “In this case we are required to decide the constitutionality of Tennessee’s statute making available the purchase of automobile license plates with a `Choose Life’ inscription, but not making available the purchase of automobile license plates with a `pro-choice’ or pro-abortion rights message.” He went on to hold that “Although this exercise of government one-sidedness with respect to a very contentious political issue may be ill-advised, we are unable to conclude that the Tennessee statute contravenes the First Amendment.”
On the merits, the court said that it was faced with a purely legal issue: whether a government-crafted message disseminated by private volunteers creates a “forum” for speech that must be viewpoint neutral. The Plaintiffs argued that “Choose Life” on specialty plates should be treated not as Tennessee’s own message, which is allowed, but as “mixed” speech subject to a viewpoint-neutrality requirement. In rejecting the Plaintiff’s contention, the court stated that “First, there is nothing implausible about the notion that Tennessee would use its license plate program to convey messages regarding over one hundred groups, ideologies, activities, and colleges. Government in this age is large and involved in practically every aspect of life. . . . Second, . . . the participation of New Life in designing the “Choose Life” logotype has little or no relevance to whether a plate expresses a government message. Third, . . . a government-crafted message is government speech even if the government does not explicitly credit itself as the speaker.” The panel reasoned that “[I]nvalidating the Act in this case would effectively invalidate not only all those government specialty license plate provisions that involve a message that anyone might disagree with, but also effectively invalidate all manner of other long-accepted practices in the form of government-crafted messages disseminated by private volunteers. We are not provided with a sound legal basis for making such a leap.”
The majority recognized its disagreement with the Fourth Circuit, which has invalidated a nearly identical specialty license plate law in South Carolina. See Planned Parenthood of S.C., Inc., v. Rose, 361 F.3d 786 (4th Cir. 2004). Judge Martin, in dissent, stated that it was apparent to him that “the state created the specialty license plate program to facilitate private speech (notwithstanding the government speech aspects inherent in the issuance of a license plate), and not to promote a governmental message. This fact, even conceding that there must necessarily be some governmental speech involved in the issuance of license plates, requires that the government be viewpoint neutral.” ACLU, et. al. v. Tennessee, et. al., filed March 17, 2006. Download the Sixth_Circuit_license_plate_decision here.pdf (reo)
Case Law Development: Ohio Surrogate Mom Must Repay Her Fee to Biological Father Because She Won Custody of Children
In an ongoing battle between the courts of Ohio and Pennsylvania, the latest ruling comes from Ohio where the surrogate mother, who was awarded custody of triplets she delivered, must repay the biological father her $20,000 surrogate's fee and the child support he was required to pay for the three boys. Although a Pennsylvania court had ruled that the contract between the parties was void, in a unanimous ruling Wednesday, the 9th Ohio District Court of Appeals said the surrogate mother had violated her surrogate's agreement when she claimed the triplets as her own after their birth and took them home to Pennsylvania. The contract contained language that required the surrogate and her spouse to surrender custody of the children following their birth. It also contained language stating that if the agreement was breached, the surrogate and her spouse would reimburse the biological father, a 64 year old professor at Cleveland State University.
The court ruled that “upon undisputed evidence that the surrogate and her spouse breached the contract and the conclusion that the contract is enforceable,” the surrogate and her spouse are liable for restitution of the monies paid by the biological father, “as well as attorney fees as may be determined by the common pleas court on remand.” Moreover, they are liable “for all monies the biological father has been required to pay to them by court order, such as child support.” J.F. v. D.B., filed March 15, 2006. Ohio Ninth Circuit Court of Appeals. You may download the Ohio_Court_of_Appeals_surrogate_slip opinion here.pdf (reo)
Israel Equates Common Law Spouses with Married Couples
The Supreme Court of Israel ruled Thursday that foreigners who request a legal status in that country due to their common law marriage with Israeli citizens will no longer have to leave the country before filing the request. The ruling is consistent with the changed policy implemented by the Interior Ministry that equated the status of married couples to common law couples. Source: Israel Post, jpost.com. For the complete story, please click here (last visited March 18, 2006, reo).
Georgia Woman, 37, Who Married Teen and Had His Child, Gets Jail Term for Statutory Rape
A 37-year-old woman charged with child molestation after marrying a 15-year-old friend of one of her sons pleaded guilty Wednesday to statutory rape and received a nine month jail sentence. The couple developed a relationship and the woman became pregnant. A few days before her arrest on the criminal charge, she and the boy married under a Georgia law that allowed children to marry if the bride-to-be is pregnant. The woman gave birth to a boy on Feb. 11. The publicity surrounding the relationship and marriage has prompted Georgia lawmakers to enact a law that requires court permission for teens under 16 to marry. Source: The Plain Dealer, AP, Cleveland.com. For the complete story, please click here (last visited March 18, 2006, reo).
Morman Church Considering Excommunication of Member Who Married His Gay Partner in Canada
It has been reported that the Mormon Church is threatening to excommunicate a longtime member after he legally married his male partner in Canada. The member says that he was recently informed by a senior church official that his life is incompatible with the doctrine of the Church of Jesus Christ of Latter-day Saints and that a disciplinary council would address the matter. If excommunicated, this would be would be the first time a Mormon in a legal, same-sex marriage was punished by the church. Source: Advocate.com. For the complete story, please click here (last visited March 18, 2006, reo).
March 17, 2006
Case Law Development: Child Support Adjustments Based on Percentage of Residential Time Applies only to Parents Actively Exercising Overnight Visitation
The Florida Court of Appeals affirmed a trial court's award of child support based on the actual time the non-custodial parent exercised visitation rather than the time agreed to in the parenting plan. Florida statutes provides an adjustment to child support in situations in which children spend more than forty percent of their time with one parent. Here, Father had the right to alternate weekend visitation beginning on Thursdays (which, combined with other visitation would have amounted to more than 40 percent), but in fact only took the children beginning on Fridays. The court held that the trial court acted properly in calculating Father's child support without applying the 40 percent adjustment because that rule only applies to parents actively exercising overnight visitation for forty percent of the nights of the year, rather than parents simply having that entitlement.
Font v. Mastrapa-Font, 2006 Fla. App. LEXIS 3553 (March 15, 2006)
Opinion on the web (last visited March 17, 2006 bgf)
Case Law Development: Court May Not Require Relocating Parent to Prove Advantage of Move
Mother, who had primary custody of daughter, sought to relocate with her new husband to their hometown in Oklahoma. The Arkansas Court of Appeals reversed a trial court's denial of her relocation motion on the basis that, while the trial court had recognized that there exists a presumption in favor of relocation by custodial parents, the court essentially placed the burden on the Mother to prove that the move constituted an advantage to the child. The trial court had based its decision to deny relocation in large part on the uncertainties of the child's relationship with her extended family in Oklahoma and the uncertainty of the quality of schooling there. The court of appeals noted that the trial court's determination that relocation should be denied because mother would be moving child from "a healthy, stable environment to which she was adjusted to an environment that is unknown" was implicitely shifting the burden to Mother to prove that "the move would provide an equally or more stable situation for the child." The court noted that prior caselaw did not support the trial court's assessment that "any "marginal" differences between the quality of the sending and receiving schools shall constitute a basis for denial of a custodial parent's relocation request in the absence of evidence that the difference is so significant as to cause the court to conclude that attendance at the new school will be detrimental to the interests of the child."
Benedix v. Romeo, 2006 Ark. App. LEXIS 218 (March 15, 2006)
Opinion on the web (last visited March 17, 2006 bgf)
Case Law Development: Marital Communications Privilege Doesn't Apply to Prisoner Correspondence
Being married to you attorney gives you no particular privileges. The 9th Circuit Court of Appeals reviewed a fascinating assertion of the marital communications privilege. In this case, the government had sought access to letters written by a prisoner to his wife, who was also his attorney. The attorney-client privileged and work product portions of the letters had already been redacted and husband asserted the marital communications privilege to protect the remainder of the letters from disclosure. (Causing me to wonder where the line is between talking to your attorney and talking to your spouse?)
The court of appeals assumed, without deciding, that "a recording or document containing a confidential marital communication is protected from disclosure to an adverse party during an investigation." Nevertheless, the court held in the circumstances of prisoner communications, the privilege does not apply, since prison authorities have had the right to read letters written to spouses. "There is no free-standing marital communications privilege, under either federal or state law, allowing a California prisoner to send confidential letters from prison to his or her spouse." Given that, the court was unwilling to find that such a privilege existed merely because these communications were contained in the same document as attorney-client privileged communications.
United States v. Griffin, 2006 U.S. App. LEXIS 6393 (March 16, 2006) bgf
Case Law Development: Physician's Denial of Lesbian's Artificial Insemination Did Not Violate California Civil Rights Act if Based on Her Unmarried Status
The California Court of Appeals has reversed a trial court's summary adjudication of defendants First Amendment defense in a case alleging violation of the Unruh Civil Rights Act. The case involved a lesbian fertility patient who sued her a medical group and physicians, when the physicians refused to perform intrauterine insemination. The patient alleged that the physicians refused to provide treatment because she was a lesbian, and petitioners responded with an affirmative defense of free exercise of religion. On appeal, the court reversed the summary adjudication of that defense, finding that petitioners raised a triable issue as to whether the religiously-based refusal to perform IUI was based on the patient's marital status, rather than her sexual orientation. The court found that marital status discrimination was not prohibited by the Unruh Act when the alleged violation occurred. Further, a subsequent statutory amendment and subsequent case law addressing marital-status discrimination under the Unruh Act effected changes in the law that operated prospectively only. Although the bill in question included a legislative declaration that the amendment clarified, rather than changed, the Unruh Act, the court concluded that the statute did change the law because the settled case law had been that the Unruh Act did not apply to marital-status discrimination. Retroactive application was inappropriate because it would have imposed liability for actions not subject to liability when taken. Thus, the court issued a writ of mandate directing the trial court to vacate its order granting summary adjudication on the physicians' religion-based defense and to enter an order denying the motion for summary adjudication as to the physicians.
North Coast Women's Care Med. Group, Inc. v. Superior Court of San Diego County/Benitez, 2006 Cal. App. LEXIS 338 (March 14, 2006)
Opinion on the web (last visited March 15, 2006 bgf)
Case Law Development: Washington State Upholds Constitutionality of Relocation Statute
The Washington Court of Appeals covers all the constitutional basis in reviewing a father's challenges to that state's relocation statute. Father, who had primary custody of child, was denied his motion to relocate. He challenged the relocation statute as violating a fit custodial parent's fundamental right to autonomy in child-rearing decisions, citing Troxel. The court found that, unlike the Troxel line of cases, relocation decisions involve interference with residential or visitation time that the court has already found to serve the best interest of the child. Also, unlike the statutes in question in Troxel, the relocation statute limits the third parties whose objections to the relocation require hearing. Finally,the relocation statutes establish a rebuttable presumption that the relocation will be allowed. "In this way, the statute incorporates the presumption that a fit parent will act in the best interest of the child. Moreover, the objecting person has the burden of overcoming this presumption and, to succeed, the objecting person must show that the detrimental effect of the relocation upon the child outweighs the benefit of change to the child and the relocating parent." Accordingly the court concluded there was no basis for constitutional attack on interference with a fit parent's decisionmaking.
Father also argued that the statute violated the Equal Protection Clause, the Commerce Clause, the right to privacy in family matters, and the freedom to travel as protected by the Due Process Clause. The court likewise rejected these arguments, finding that the relocation statute was justified under the state's exercise of its parens patriae authority and did not unduly infringe upon any of these asserted interests. The court affirmed the decision of the trial court.
Momb v. Ragone, 2006 Wash. App. LEXIS 425 (March 14, 2006)
Opinion on the web (last visited March 17, 2006 bgf)
March 16, 2006
Reader Survey - Please Respond!
Please take a moment to fill out our short reader survey here. We would like to have a better idea about who is reading this blog so we can better serve you. Thanks in advance for your help. (The survey will remain at the top of the middle column throughout this week.)
Seeking Return of Best-Interests Attorneys in Maryland
Legislation is pending before the General Assembly of crucial importance to one of the most vulnerable groups of Marylanders: children who are the subject of contested custody battles between their parents. The pending legislation, which was drafted in response to the recent decision of the Maryland Court of Appeals in Fox v. Wills, would restore to Maryland judges the authority to appoint attorneys to represent the best interests of children. Speaking in Annapolis last week, Pamela Cardullo Ortiz, a representative of the Maryland judiciary, described the appointment of these "best-interest attorneys" as one of the best tools a trial judge has to ensure that custody trials protect children and focus on their real needs. "Give us back this tool," she said. . . . In court, these attorneys give voice to the child's views and advocate for the child's best interests. Montgomery County Circuit Judge Ann Sundt has testified that if courts lose the ability to appoint best-interest attorneys, it will set back the administration of justice in child custody cases by 20 years, weakening many child-centered reforms instituted during the past two decades." By John Spiegel, baltimoresun.com Link to Article (last visited 3-15-06 NVS)
Father Drugs Children's Tennis Opponents
"A father who drugged his children's tennis opponents, leading to one player's death, was sentenced to eight years in prison after being convicted Thursday. . . . Fauviau was accused of spiking the water bottles of his children's opponents 27 times in tournaments across France from 2000 to 2003, using the anti-anxiety drug Temesta, which can cause drowsiness. The case illustrated the darker side of some parents' attempts to help their children achieve athletic success." By Pierre Sauvey, Associate Press Writer, St. Louis Post-Dispatch Link to Article (last visited 3-15-06 NVS)
Alec Baldwin Writes About Child Custody
"Alec Baldwin is writing a book about child custody cases after enduring a heartbreaking custody battle for his daughter, Ireland. The star has been battling ex-wife Kim Basinger for joint custody during a long, drawn-out court case." By Starpulse News Blog from World Entertainment News Network Link to Article (last visited 3-15-06 NVS)
Pro Bono Parenting Coordination
"An APA Practice Organization-backed pilot project that provides free parenting coordination to needy Washington, D.C., parents in high-conflict divorces opened its first cases in November. The project--a collaboration of the D.C. Psychological Association the D.C. Bar's Pro Bono Program and Argosy University/Washington, D.C.--trained three advanced Argosy graduate students to serve as the project's parenting coordinators. The collaborators supervise the coordinators throughout the project, which was funded for one year by a $15,000 grant from the APA Practice Organization's Committee for the Advancement of Professional Practice. "The project offers us the chance to be on the forefront of something that makes really good sense," says Argosy student Kay Hughes, JD, a New Mexico lawyer who plans to incorporate parenting coordination into her practice after graduation. "But probably what is most exciting about the project is that we're providing a service to a population that has had no access to it."" By D. Smith Bailey, APA Online Link to Article (last visited 3-15-06 NVS)
Women and Careers
"HIGHLY educated women are getting a bum rap from the press. There has recently been a spate of news and opinion articles telling us that these women, especially graduates of the best universities and professional schools, are "opting out" in record numbers, choosing the comforts of home and family over careers. And because there are now 1.33 women graduating from college for every man, the best and brightest women will either have to "marry down" or, more likely, we are told, remain single. Taken together, highly educated women will have either family or career. Half of it all, rather than "having it all." But the facts speak loudly and clearly against such suppositions. Women who graduated 25 years ago from the nation's top colleges did not "opt out" in large numbers, and today's graduates aren't likely to do so either." By Claudia Goldin, Op-Ed Contributor, New York Times Link to Article (last visited 3-15-06 NVS)
March 15, 2006
Virginia Judge Refuses to Recognize Vermont Civil Union
Virginia Circuit Court Judge John R. Prosser ruled on Monday that a Vermont civil union may not be registered in the state because the laws of Virginia do not permit civil unions or same-sex marriage. In Miller v. Jenkins, Lisa Miller and Janet Jenkins, while living in Virginia, went to Vermont where they obtained a civil union. Lisa gave birth to a child through artificial insemination but Janet never adopted the child. When the relationship broke down, Janet sought to continue her relationship with the minor child.
A Vermont court awarded Janet “parent-child” contact with the minor child plus visitation, however, a Virginia court declared Lisa to be the sole parent and ruled that Virginia’s Marriage Affirmation Act barred recognition of civil unions. While simultaneous appeals of the rulings were pending, Janet attempted to register the Vermont trial court order that had granted her “parent-child” contact and visitation in Virginia. Registration is the usual first step to enforce an out-of-state visitation order in Virginia.When the family court judge agreed to register the Vermont order, Lisa appealed and the Circuit Court reversed the order. Source: Family Policy Network, familypolicy.net. For the complete story, please click here (last visited March 15, 2006, reo).
Commentary: Boston College Law Dean Speaks Out on Massachusetts Catholic Charities Adoption Squabble
Last Friday the Boston Archdiocese's Catholic Charities' announced that it would put an end to its century-old adoption service rather than comply with state law allowing gays to adopt children. The announcement has generated wide-spread debate in that state, which is both staunchly Catholic and very supportive of gay rights. In view of the debate, our readers may find Boston College law school Dean John Garvey’s column in Tuesday’s Boston Globe, “State putting Church Out of Adoption business,” timely and interesting. To read Dean Gavey’s perspective on this issue, please click here (last visited March 15, 2006, reo).
Irish Couple Battle Over Ownership of Frozen Embryos
Following her divorce, an Irish woman is taking her battle for control of three frozen embryos to Ireland’s High Court. The embryos were conceived during IVF treatments in 2001 and she and her then husband had a child after those treatments. The remaining three embryos were stored for future use, with both parties signing a joint consent form. The woman is now seeking to have the embryos thawed and implanted so she can have more children, however, her ex-husband has a new relationship and is unwilling to consent. Last week the European Court of Human Rights ruled against a woman in an identical situation. Supporters of the woman contend that because Ireland’s constitution guarantees the right to life of an unborn child, that this factor makes the Irish case unique. Source: Gudrun Schultz, Lifesite.net. For the complete story, please click here (last visited March 15, 2006, reo).
Tennessee Senate Approves Constitutional Referendum in 2010 on Abortion
Last Thursday the Tennessee Senate approved legislation that would allow a statewide constitutional referendum in 2010 to ratify new constitutional language that reads: "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion." The measure passed on a bipartisan vote of 24-9. In 2000, the Tennessee Supreme Court had struck down a series of abortion restrictions found in Tennessee law. However, some observers contend that in those rulings the court suggested that the Tennessee Constitution contains a stronger, implicit right to privacy than the United States Supreme Court has recognized in the United States Constitution. Source: The Tennessean.com. For the complete story, please click here (last visited March 15, 2006, reo).