February 18, 2006
Case Law Development: Sixth Circuit Court of Appeals Orders New Hearing on Abortion License
In Women’s Medical Professional Corporation; Martin Haskell, M.D., v. J. Nick Baird, M.D., Director of Ohio Department of Health, a three-judge panel of the Sixth Circuit Court of Appeals on Friday gave the state of Ohio another opportunity to show why a doctor should not be allowed to perform abortions at a clinic in Dayton. The dispute involved the Women’s Medical Professional Corporation that operates an abortion clinic in Dayton, Ohio. Under Ohio law, the Dayton clinic is required to be licensed. The clinic attempted to enter into a written transfer agreement with a Dayton-area hospital in order to meet the requirements necessary to obtain a license. No hospital would enter into a transfer agreement with the clinic. The clinic then sought a waiver of the transfer agreement requirement. In its application, it stated that it had a back-up group of physicians that would provide care in the event of an emergency, and it also provided a letter from a Miami Valley, Ohio Hospital, stating that the hospital would accept patients in the event of an emergency. The director of the Ohio Department of Health refused to grant a waiver and in January 2003 ordered the clinic closed. The clinic sued and two U.S. District Court judges issued a temporary and then permanent order that would allow the clinic to remain open.
The Director appealed the district court’s grant of a permanent injunction and award of attorneys’ fees and expenses. The Sixth Circuit affirmed the district court with respect to its conclusion that the clinic’s procedural due process rights were violated, but vacated the grant of a permanent injunction and remanded the case for a hearing on the proposed denial of the license application.
The Court concluded that closing the Dayton clinic may be burdensome for some of its potential patients, however, the fact that the women may have to travel farther to obtain an abortion does not constitute a substantial obstacle. It stated that evidence in the record established that there are abortion clinics in Cincinnati, Columbus, Cleveland, and Akron and the clinic itself operates an abortion clinic in Cincinnati, which is approximately forty-five to fifty-five miles from the Daytonclinic.
The panel held that the application of the written transfer agreement requirement to the Dayton clinic is not an undue burden under Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It said that while the Director may have been affected by political pressures to deny the waiver application, the district court made no factual finding that the Director acted with an unconstitutional purpose to burden the right of women to choose an abortion. The panel also ruled that while the application of the written transfer agreement requirement may serve to close the Dayton clinic, the clinic presented no evidence that a majority of the Dayton clinic’s prospective patients would not be able to receive an abortion at another clinic. Download here the slip opinion, Womens_Medical_Professional_Corp. , et. al. v. Baird.pdf (reo)
Idaho Senate Passes Proposed Gay Marriage Amendment – Measure to Appear on November Ballot
The Idaho Senate passed a proposed constitutional amendment banning gay marriage on Wednesday. The measure will go to that state’s voters in November. A similar proposal was rejected by the senate last year when proponents could not muster the required two-thirds majority. This year the measure passed 26-9. Source: Anne Wallace Allen, AP, The Bellingham Herald, bellinghamherald.com. For the complete story, please click here (last visited February 18, 2006, reo). The text of the bill as passed by the Idaho Senate can be found here (last visited February 18, 2006, reo).
Italian High Court Says Sexual Abuse Less Serious if Victim is not a Virgin
Italy’s High Court ruled Friday that a man who sexually abuses a teenager is guilty of a less serious crime if the girl is not a virgin. The man had forced his 14-year old stepdaughter to have oral sex with him after she refused intercourse. The Appeals Court found that his three year and four month jail sentence was inappropriate because the stepdaughter had sex with men before. It ruled that the trial judge should have considered that the victim’s "personality, from a sexual point of view, is much more developed than what would be normally expected of a girl of her age". Source: Swissinfo.org. For the complete story, please click here (last visited February 18, 2006, reo.)
Case Law Development: Intermediate New York Court Denies Same-Sex Challenge to Marriage Restrictions
New York’s marriage law is constitutional, a five-judge panel of the Supreme Court, Appellate Division, Third Judicial District ruled Thursday. In its ruling, the intermediate court addressed three separate cases involving gay couples that were refused marriage licenses in the state of New York. They had argued that the state’s definition of marriage, as being only between a man and a woman, violated New York’s Constitution and implicated provisions concerning equality, privacy and legal access.
Justice John Lahtinen, writing for a unanimous court, stated that the role of defining the boundaries of marriage "has always been subject to the control of the Legislature" and, even though a particular judge or judges may disagree with the wisdom of some aspects of the restrictions, it is an area "left to the legislature to resolve.”
The court noted that several appellate courts in other jurisdictions have addressed a similar issue under their constitutions and, in some instances, the US Constitution and have arrived at varying conclusions, often by divided votes. However, it observed that in New York the First Department recently held that maintaining the definition of marriage as being between one man and one woman does not violate the NY Constitution (Hernandez v Robles, ___ AD3d ___, 805 NYS2d 354 ) and, although it addressed the issue in a somewhat different context, the Second Department had indicated a similar conclusion. The decision is expected to be appealed to New York’s highest court. Download here the slip opinion, Seymour_v. Holcomb, City Clerk of Ithaca.pdf (reo)
Virginia Foster Parent Given 75 Years Sentence for Abusing Foster Children
A Virginia foster parent who had cared for three children for more than three years was given a 75 year jail sentence for abusing them while in his care. According to press reports, he used his hands, a telephone, and cords such as coaxial cables to beat the children in his custody. The children were also often denied food and medical care. The judge suspected 50 years of the sentence. Source: Beverly N. Williams, NewPort News, daily press.com. For the complete story, please click here (last visited February 18, 2006, reo).
Man $80,000 in Child Support Arrears Gets 10 Month Jail Sentence
A 58 year-old North Dakota father who owed $80,982.24 in back child support was sentenced to 10 months in jail by U.S. District Court Judge Ralph Erickson after pleading guilty to a felony charge of failure to pay child support. The father admitted to fleeing to Montana in his effort to escape his child support obligation. He also admitted that he had been moving around since 1997 in attempts to hide. Source: Grand Forks Herald, grandforks.com. For the complete story, please click here (last visited February 18, 2006, reo).
February 17, 2006
Case Law Developments: No Qualified Immunity for Removal of Children from Home if State Does not Follow Statutory Requirements
State child protection services have once again been held subject to suit under Section 1983. In this case, the US Court of Appeals for the Tenth Circuit affirms a district court's denial of summary judgment to child protection workers on the basis of qualified immunity.
The case followed actions by the Utah child protective services in their investigation which indicated that the child was being medically neglected by Mother, whom doctors suspected had Munchauser Syndrome by Proxy. The child protective worker in the case consulted with a attorney in the attorney general’s office who indicated that the information gained was sufficient to remove the child from the home. Although the child protective worker did not believe Child was in imminent danger of death and although the family treating physician indicated that removal from the home would be harmful to the child, Child was taken into protective custody and placed in foster care. Following a second shelter hearing, the child was released to the parent’s custody under DCFS supervision.
Parents sued under 42 U.S.C. 1983 alleging removal of their son from their home without a warrant or pre-deprivation hearing violated their Fourth and Fourteenth Amendment rights. The district court concluded that while Defendants did rely on Utah statutes providing for removal of children without a warrant, they did not actually comply with the statute and could not reasonably have concluded that their noncompliance was constitutional. Moreover, the district court reasoned Defendants were not entitled to rely on the advice of counsel because the attorney did not know of the child’s physician’s opposition to removal when he advised Defendants that removal was proper. Thus, the district court granted summary judgment for plaintiffs on liability.
The Tenth Circuit affirmed, holding that because the State failed to comply with the statute on which they base their qualified immunity claim, their conduct was not objectively reasonable.
Roska v. Sneddon, 2006 U.S. App. LEXIS 3126 (10th Cir. February 9, 2006)
The Court of Appeals reasoned that reliance on a statute does not make an official's conduct per se reasonable. Rather, it is a factor to consider in determining objective reasonableness and requires consideration of “(1) the degree of specificity with which the statute authorized the conduct; (2) whether the official in fact complied with the statute; (3) whether the statute has fallen into desuetude; and (4) whether the official could have reasonably concluded the statute was constitutional.”
The statute in question required both danger to the child and reasonable efforts to eliminate the need for removal before a child could be placed in protective custody without a warrant. With post-deprivation hearings available, the Court of Appeals found it reasonable for the state to conclude that the statute was constitutional. Nevertheless, the court found that the state had failed to actually comply with the statute on which they rely because they did not provide preventive services to the parents. The state argued that parent’s prior unwillingness to cooperate with physicians and child protection investigations, along with the nature of mother’s suspected condition, caused them to conclude that services would not be effective in protecting Child. However, the court found that the child was not in such immediate peril, especially given the doctor’s opposition to removal, that the state could refuse to provide services.
A strong dissent by one judge would have affirmed the summary judgment for defendants on the qualified immunity defense.
Case Law Development: No Right of Action under Section 1983 for State's Failure to Distribute Child Support Payments in Compliance with Statutory Provisions
Child support enforcement agencies are faring better in 1983 litigation than child protection workers. In this case, the US Court of Appeals for the Eleventh Circuit upheld summary judgment for the state child support enforcement agency in this Section 1983 case brought by custodial parents who receive child support payments collected, distributed, and disbursed by the State of Alabama.
The district court held that the parents had failed as a matter of law (1) to establish 42 U.S.C. § 657 creates individual rights, enforceable under § 1983, to distribution of child support payments in strict compliance with § 657; and (2) to show a § 1983 violation of their procedural due process rights. The Court of Appeals affirmed.
Arrington v. Helms, 2006 U.S. App. LEXIS 3434 (February 13, 2006) bgf
February 16, 2006
Child Welfare Lawsuit Settled
"Fulton County must provide "adequate, effective and zealous" attorneys to represent abused and neglected children in the child welfare system, according to a lawsuit settlement reached Monday.The settlement resolves a 2002 suit that accused the county of failing to provide children with adequate legal representation during foster care hearings. Without a legal champion, the lawsuit charged, some children lingered in foster care limbo or were returned to abusive homes." By Craig Schneider, ajc.com Link to Article (last visited 2-15-06 NVS)
Suit Against Mississippi's Child Welfare System
"A New York-based nonprofit children's interest group has brought a federal lawsuit against Mississippi's child welfare system after finding evidence of neglect, understaffing and fiscal mismanagement. Children's Rights released a series of reports Tuesday that say authorities in the Mississippi Department of Human Services have been aware of problems within the system, but did little to correct them.
"One of the reasons we filed this lawsuit is in fact that Mississippi children are in particular jeopardy in MDHS custody," said Eric Thompson, a senior staff attorney with Children's Rights. "This is an agency that is underfunded, understaffed and mismanaged at all levels, resulting in very real harm to children, including physical abuse and sexual abuse." By Valerie Bauman, SunHerald.com Link to Article (last visited 2-15-06 NVS)
Editorial Urges Child Welfare Changes
"New Jersey's new governor, Jon Corzine, has gotten off to a good start in the effort to reclaim one of the most notorious child welfare departments in the country. A task force has already recommended sweeping changes, and Mr. Corzine has named Kevin Ryan, formerly the state's child advocate, as director of the Human Services Department. The system needs a complete makeover.
The state's terrible performance at protecting its most vulnerable children was on vivid display last week, when an adoptive mother was sentenced to prison for systematically starving four children over a period of years — while the family was supposed to be under the supervision of the child welfare agency. The four boys were walking skeletons when they were removed from the home 27 months ago, but they have since been nursed back to health. Bruce Jackson, 21, who has grown more than a foot and gained nearly 100 pounds, moved onlookers in court to tears as he described how his adoptive mother, Vanessa Jackson, had starved, beaten and abused the siblings, forbidding them to play with toys or to bathe when they were dirty. This hellish treatment persisted, and the Jacksons were allowed to adopt three more children despite visits from caseworkers who missed obvious signs of trouble and tips from informants." Editorial, New York Times Link to Article (last visited 2-15-06 NVS)
Soliciting Children in Chat Rooms
"A lieutenant colonel in the Army Reserve, a firefighter and a college student are among 24 Manhattan and Long Island men accused of soliciting sex from detectives posing as children in computer chat rooms during a monthlong sting operation, the Suffolk County police said on Tuesday. All were charged with attempting to disseminate indecent material to a minor, a felony with a maximum penalty of four years in prison. The 24 cases together constitute the largest child sex crackdown ever in Suffolk, the police said." By Julia C. Mead, New York Times Link to Article (last visited 2-15-06 NVS)
Bronze Medalist Hopes to Find Birth Parents
"Toby Dawson arrived in the United States with no name and no birthday.He was adoptee K81-2879, found on the streets of Seoul, South Korea. Workers at the South Korean orphanage where he lived called him Kim Soo Chul. They listed his date of birth as Nov. 30, 1978, because it seemed like a reasonable guess. On Wednesday night, adoptee K81-2879 became an Olympic medalist. When he won the bronze in the men's moguls competition, his adoptive mother, Deborah Dawson, flashed back to the first time she saw him, on a spring day at a Denver airport 24 years ago. "It felt," she said, "a lot like it feels right now."
After Toby Dawson completed his medal-winning ride, he removed his helmet triumphantly, possibly revealing his face to the birth parents who might have been watching on a television far away. Before the Olympics, Dawson placed 12 childhood photographs on nbcolympics.com, in the hope that a couple in South Korea would recognize some of the pictures." By Lee Jenkins, New York Times Link to Article (last visited 2-16-06 NVS)
February 15, 2006
Eighth Circuit Court of Appeals Hears Oral Arguments on Nebraska’s Antigay Constitutional Amendment
The Eighth Circuit Court of Appeals heard oral arguments Monday in Citizens for Equal vs. Bruning. In that case, the lower court had ruled that Nebraska’s Constitutional Amendment defining marriage as between a man and a woman and barring consideration of civil unions was overly broad. The Amendment was apparently in response to decisions from Massachusetts (marriage) and Vermont(civil unions). The challengers contended that the Nebraska Amendment differed from other state constitutional amendments because it prevented gay couples from even applying for recognition as domestic partners. However, it did not bar single heterosexual couples from seeking this opportunity, they said. An opinion is not expected for several weeks. Oral arguments in the case, Citizens for Equal Protection, Inc., et al v. Attorney General, number 05-2604, may be found here (last visited February 15, 2006, reo).
Ohio Indicts 3 in Caged-Children Case
A Huron County, Ohio couple who kept some of their 11 adopted special-needs children in wood-and-wire cages was indicted Tuesday on multiple counts of child endangering. The therapist who counseled the children and testified for the couple at a December hearing was also indicted. Each of the three was charged with 16 counts of third-degree felony child endangering; eight counts of first-degree misdemeanor child endangering; five counts of first-degree misdemeanor falsification, and one count of perjury, a third-degree felony. The children, ages 1 to 15, were removed from their home September 9 after authorities found the cages inside the residence. Source: Steve Murphy, Toledo Blade, toledoblade.com. For the complete story, please click here (last visited February 15, 2006, reo).
India to Require Registration of All Marriages
India's Supreme Court has given the federal and state governments in that country three months to enact legislation making it compulsory to register all marriages. Under the proposed changes, proof of a traditional religious marriage ceremony would not be sufficient. Proponents of registration say it will curb crimes such as bigamy and marriage without consent. Opponents charge that the state is interfering and the law is unnecessary. Source: Ayanjit Sen, BBC News, Delhi, bbc.com. For the complete story, please click here (last visited February 15, 2006, reo).
Case Law Development: New York City's Equal Benefits Law Struck Down
In a 4-3 decision, a divided New York Court of Appeals held that New York City's Equal Benefits Law is preempted by state and federal statutes. The law would have required contractors that do more than $100,000 of business each year with NYC to offer benefits to the partners of gay and lesbian workers equal to those the companies give heterosexually married couples. The legislation would have made health coverage available to tens of thousands of additional people in the New York City region. You may download here the New_York_Slip Opinion equal benefits_case, In re the Matter of Council of New York v. Bloomber, decided _Feb_14.pdf (reo).
Colorado Clergy Oppose State Marriage Amendment
A coalition of Colorado clergy announced Tuesday that they are opposed to changing that state's constitution to strictly define marriage as between one man and one woman. The clergy called the proposal discriminatory, unneeded and a diversion from important issues. Source: Eric Gorski, Denver Post, senverpost.com. For the complete story, please click here (last visited February 15, 2006, reo).
Massachusetts Law Denying Gay Couples From Outside State to Marry Challenged
Eight gay couples from states outside Massachusetts, all of whom were denied marriage licenses when they applied for them in that state, are challenging the 1913 state law used to justify rejection of their marriage application. Massachusetts is the only state in the United States that recognizes that same-sex couples may marry and receive the same legal recognition as heterosexual couples. The Massachusetts Supreme Court has waived a self-imposed deadline for ruling on the question. Source: WLBZ-TV, wlbz2.com. For the complete story, please click here (last visited February 15, 2006, reo).
Chinese Couples Rush to Marry on Valentine’s Day
Couples from provinces throughout China rushed to marry on Valentine’s Day, believing that a marriage that begins on that day will be “rosy and lasting.” Source: chinaview.cn. For the complete story, please click here (last visited February 15, 2006, reo).