Saturday, June 3, 2006
Case Law Development: Illinois Rules Accused’ Mental Health Records Not Open for Discovery in Child Molestation Case
The Illinois Supreme Court ruled Friday that the mental health records of a former priest accused of child molestation are protected from discovery by the confidentiality granted by that state’s Confidentiality and Dependency Act, which was passed after the date of the alleged abuse. It reasoned that “the applicability of the Confidentiality Act and the Dependency Act to Kownacki's treatment records does not hinge upon a retroactivity analysis. Disclosure, which is the act regulated by both statutes, takes place only in the present or the future. . . . [A]pplying the nondisclosure provisions of the Confidentiality Act and the Dependency Act to preenactment treatment records and communications would not impair anyone's rights with respect to past transactions.”
The ruling came in a now-adult plaintiff’s lawsuit against a priest accused of child molestation. The plaintiff sought the records to show that the diocese knew about the abuse in the 1970s when the molestation allegedly occurred and the trial judge had ordered them turned over. When the defendants failed to provide the information, the trial judge issued a contempt order. Newspaper source. Kevin McDermott, Post-Dispatch, stltoday.com. For the complete news story, please click here (last visited June 3, 2006, reo). The opinion of the Illinois Supreme Court in the case of Wisniewski v. Kownacki may be found by clicking here (last visited June 3, 2006, reo).
New York, Washington, New Jersey Highest Courts All Considering Whether Same-Sex Couples Have Right to Marry
The highest courts in New York, Washington, and New Jersey are currently all deliberating the question of whether same-sex couples have a right to marry in those states. New York's highest court, the Court of Appeals, heard over two hours of oral arguments on Wednesday. As the New York justices began their deliberations, their counterparts in Washington and New Jersey were also working on issuing opinions on the identical issue. Decisions from the New Jersey and Washington courts are expected this summer. Source. Ann Rostow, dallasvoice.com. For the complete news story, please click here (last visited June 3, 2006, reo).
In March the Kentucky Supreme Court reversed the rape conviction of a defendant charged with rape and molestation of a 7-year-old child. The trial judge had allowed the child to testify in a jury trial with a large white board between her and the defendant. In an apparent attempt to not draw the jury’s attention to the board, the trial judge had tried to disguise the board’s purpose by among other things having it referred to as an exhibit. The Kentucky Supreme Court was not satisfied that the trial judge had provided sufficient reasons of a compelling need for the screen and reversed the rape conviction relying on Coy v. Iowa, 487 U.S. 1012 (1988). It rejected the prosecutor’s claim that the need for the screen was “implicit” in the trial judge’s ruling to allow the screen procedure.
This week, the defendant pleaded guilty to a lesser charge and received a four-year prison sentence despite the vehement opposition of the victim’s mother. News Source. Kevin Eigelbach, cincypost.com. For the complete news story, please click here (last visited June 3, 2006, reo). The decision of the Kentucky Supreme Court in the case Wardia v. Commonwealth may be found by clicking here and typing in "Wardia" as the search term (last visited June 3, 2006, reo).
Thousands demonstrated outside the Irish parliament in Dublin Friday against a legal loophole that led to a convicted child rapist being freed from jail in May. The protest was carried out while Irish lawmakers debated emergency legislation, which was later passed, apparently without a vote. It is reported that many of the demonstrators carried white flags and flowers to represent the loss of innocence of children. The Irish Supreme Court had found a 1935 statutory rape law unconstitutional because it failed to allow a man accused of rape to defend claiming he did not know the girl was under 15. Source. USAToday.com. For the complete news story, please click here (last visited June 3, 2006, reo).
By an 85-17 vote, the Louisiana Legislature passed a bill that is worded to allow abortions only to save the life of the mother or “to prevent serious, permanent health problems for the mother.” Legislators rejected a provision that would allow an abortion for pregnancies resulting from rape or incest. The bill has been forwarded to Louisiana Governor Kathleen Blanco, who is expected to sign it. Source. Will Tubbs, lessvilledailyleader.com. For the complete news story, please click here (last visited June 3, 2006, reo).
Prince Albert of Monaco has officially recognized that a 14-Year-Old California Teenager is his daughter who was conceived out of wedlock during a brief visit by the child’s mother to Monaco. According to Prince Albert's Paris lawyer, the teenager is welcome to visit or live in the tiny Rivera principality. However, she apparently cannot take the Prince’s surname and is not eligible to become queen. She is the second child fathered out of wedlock by the prince. Source. Jim Wilson, smh.com. For the complete news story, please click here (last visited June 3, 2006, reo).
Friday, June 2, 2006
Your blogger Barbara Glesner Fines is attending the Institute for Law School Teaching this weekend, so I thought I would share some of what I'm learning here. I attended a session this morning by Jane Aiken of Washington University on Inspiring Students in which we had a spirited discussion about moving students first past their developmental learning stage of "But what's the answer?!" and then past the stage of "There is no certainty -- you just need to give the judge what they're looking for." It struck me that in family law, students are more willing to move past the black letter law certainty stage because they come into class so sure that there is no predictability in the family law system. Certainly there is plenty of discretion in family law decisionmaking, but Professor Aiken made the important point that we can teach our students how to feel empowered to be agents for justice. We must guide our students to examine the underlying values and assumptions in judicial decisionmaking (and perhaps in our own representation of clients) and how those decisions and representations may conflict with our client's values and realities. We can then devise methods to help our students exercise a role in helping law to more closely match the values and realities of our clients. Inspiring.
Here's an interesting juxtaposition of legal rights that almost slipped by me. The Maine Supreme Court held that a father who continued to show up for visitation with his daughter, sent her notes, called her, and attended her school events was acting consistent with his court-ordered rights of visitation and shared parental rights and a trial court erred in entering a protective order on his daughter's behalf on the basis of harassment. Daughter feared her father and did not want contact with him, but that was insufficient to prove harassment when father had a legal right to attempt to maintain the relationship. Wiley v. Wiley, 2006 ME 45 (May 1, 2006)
Opinion on the web (last visited June 4, 2006)
Thursday, June 1, 2006
"Lifetime lovers Frank and Anita Milford have reportedly become Britain's longest-married living couple after celebrating their 78th wedding anniversary. The pair met as teenagers at a dance in Plymouth, southern England, in 1926 and married two years later. Asked for the secret of their enduring union, Frank Milford, 98, a retired dock worker, was quoted in The Daily Telegraph as saying: "We don't always see eye to eye and we do have a small argument every day. "But that comes and goes. We are always here for each other." His 97-year-old wife added: "The key is give and take and lots of laughter." With their relationship as strong as ever, the couple hope to beat the record for Britain's longest-ever marriage of 80 years, set by Percy and Florence Arrowsmith. Percy Arrowsmith died last year." Yahoo News Link to Article (last visited 5-31-06 NVS)
"A man serving a life sentence for murdering his wife is asking a federal judge to order the state to pay for a sex-change operation, arguing that denying him the surgery amounts to cruel and unusual punishment. A psychiatrist testified Tuesday that he believes Robert Kosilek, who now goes by Michelle, will commit suicide if state corrections officials refuse to allow the surgery and Kosilek is unable to complete the transformation into a woman. Kosilek, 57, was convicted of strangling his wife, Cheryl, in 1990. In 2002, U.S. District Judge Mark Wolf ruled Kosilek was entitled to treatment for gender identity disorder, but he stopped short of ordering the state to pay for a sex-change operation." By Denise Lavaoie, AP,Chron.com Link to Article (last visited 5-31-06 NVS)
Wednesday, May 31, 2006
News reports from Arizona indicate that a bidding war for women’s eggs has broken out in that state. According to the reports, women can make thousands of dollars for giving up the microscopic cells to enable other women to get pregnant. It says that “proximity to California, described as a `madhouse’ of egg demand, only makes the market hotter.” Arizona women are routinely being offered as much as $7,500 to $10,000 as egg donors and some may be paid as much as $24,000. Source. Jodie Snyder, Arizona Republic, azcentral.com. For the compete story, please click here (last visited May 31, 2006, reo).
The Supreme Court of Costa Rica in a 5-2 vote has ruled the concept of "gay marriage" unconstitutional. It is reported that the Chief Justice of the court said that the problem could be solved by legislation allowing homosexuals to form "civil unions." Source. Hilary White, lifesite.net. For the compete story, please click here (last visited May 31, 2006, reo).
New York's Court of Appeals, its highest court, will hear arguments Wednesday on behalf of 45 same-sex couples who were denied marriage licenses in that state. The decision by the Court of Appeals is the final step in the state appeal process on the question of whether gay and lesbian couples should be allowed to marry. An intermediate court of appeals had earlier upheld New York's marriage laws as constitutional. A decision from the Court of Appeals is expected in a few weeks. Source. Mark Johnson, AP, newsday.com. For the compete story, please click here (last visited May 31, 2006, reo).
Ireland's Supreme Court struck down the nation's statutory rape law as unconstitutional last week. The 1935 law made sexual intercourse with a girl under the age of 15 rape, regardless of the circumstances. The Supreme Court ruled the law was unconstitutional because “it did not leave room for a genuine mistake, even if it were proven that a girl had lied about her age.” The court released a 41-year-old man who had sex with a 12-year-old girl who he had plied her with alcohol before he had sex with her when she woke up to be sick. The Government reportedly intends to enact emergency legislation to cure the defect in the law following the High Court's decision. Source. The Irish Times, Ireland.com. For the compete story, please click here (last visited May 31, 2006, reo).
According to French sources, Prince Albert II of Monaco is about to recognize a now 14-year-old girl who lives in California as a child he fathered out of wedlock. The child’s mother claims the child was conceived during a brief affair with the prince while she vacationed in Monaco in 1991. Source. Keith Matherny, The Desert Sun, thedesertsun.com. For the compete story, please click here (last visited May 31, 2006, reo).
The Michigan House Committee on Family and Children Services is set to consider a family law bill that will amend the Child Custody Act of 1970 that will instruct courts to order joint physical custody, unless there is clear and convincing evidence that one of the partes is unfit, unwilling, or unable to care for his or her child. The measure is opposed by the Michigan State Bar's Family Law Section, the Michigan National Organization for Women, Domestic Violence Escape Inc., and other groups. Source. Lansin State Journal, Lsj.com. For the compete story, please click here (last visited May 31, 2006, reo).
Tuesday, May 30, 2006
The Kentucky Court of Appeals took the rare action of reversing a trial court's termination of a mother's parental rights in a case in which she did not appear to contest the termination and the hearing on the matter lasted 15 minutes. The state alleged medical neglect because one of the three children, who was born with severe medical problems, had been catheterized by another child. The state alleged educational neglect as to a second child because he was reading far below his grade level. As to all three children, the state maintained that mother did not maintain an appropriate home. No evidence was submitted in the 15 minute hearing to support these allegations or the harm to the children.
In reversing, the court commented: "We are mindful of the enormous time pressures faced by both the family court and the attorneys involved in this case. But the state’s effort to sever permanently the relationship between parent and child is a serious affair, as evidenced by the heightened burden of proof required for termination. Based on the record before us, we believe that in its haste, the Cabinet failed to show the family court clear and convincing evidence that [mother's] parental rights should be terminated. After all, “[i]t is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.”
V.S. v. Commonwealth of Kentucky, Kentucky Court of Appeals May 5, 2006
Opinion on the web (last visited May 30, 2006)
Read a news story on the decision by Valarie Honeycutt Spears of the Lexington Herald-Leader (last visited May 30, 2006)
A Texas mother is fighting to prevent a hospital from terminating life support for her 10-month-old infant. Baby Daniel is nearly brain-dead. He cannot breathe without a ventilator. He cannot eat without a feeding tube. The hospital's ethics board has ruled that it would be futile and inappropriate to keep Daniel alive – despite his mother's wishes to try. A judge has entered a temporary restraining order regarding the termination of life support. The case is further complicated by the fact that the child had been removed from mother's custody for neglect.
Read the story by Michael Grabell in The Dallas Morning News (last visited May 30, 2006 bgf)
Monday, May 29, 2006
"Detectives were searching the home of a respected cancer doctor last night for clues as to why he killed his two young sons by throwing them off a 15th-floor hotel balcony before leaping to his own death. The bodies of eight-year-old Spencer Van Dyk and his brother Carl, four, landed with such force on the lobby roof at the Loews Hotel in Miami Beach after the 125ft plunge that a chandelier was shattered. Police say they are treating the deaths of the boys and their father, Dr Edward Van Dyk, 43, on Saturday morning as a murder-suicide and have asked colleagues in Illinois to search the family's home in Gordon for a suicide note.
"This is an individual who had issues with his wife and selfishly took his children's lives," said Sgt Bobby Hernandez of the Miami Beach Police Department. "What would possess someone to take his two children, dressed in their pyjamas, and throw them over the balcony? It's a terrible tragedy." " By Richard Luscombe, The Scotsman Link to Article (last visited 5-28-06 NVS)
"Nebraska will appeal a judge's decision not to send a convicted child molester to prison because his slight stature might subject him to abuse behind bars, the state attorney general said on Friday. Cheyenne County District Judge Kristine Cecava sentenced Richard Thompson, who is the 5 feet, 1 inch tall, to 10 years' probation this week for sexually assaulting a 13-year-old girl. Thompson's crime merited several years in prison, Cecava said, but she did not send him there because she said she feared he might not survive incarceration." Reuters, Yahoo News Link to Article (last visited 5-28-06 NVS)