Ruling Limits Courts' Role In Environmental Review
Legal Topics | 2008/07/07 15:52
Three people are accused of beating, torturing and prostituting a mentally disabled teen. Waquita "Goddess" Wallace, 33, Richard Marquis Harper, 20, and a woman identified only as "April" were charged in federal court with sex trafficking by force, fraud or coercion and sale into involuntary servitude. The victim may have been held for up to a month.

Here is the story as told by FBI Special Agent Cynthia Dockery in an affidavit:

The victim had been living with a female cousin who tried to convince her to have sex with her boyfriend. That man later forced the victim to have sex with him twice. The cousin left the victim at Wallace's house in late May or June. The cousin owed Wallace $3,300 and Wallace told the victim that the debt was now hers to pay off through prostitution and her food stamp and disability income.

The victim was forced to have sex with men and Wallace took her identification, wallet and clothes. Wallace beat her with fists and blunt objects and burned her with cigarettes and lighters. Wallace told her that she, Wallace, would kill her cousin, mother and grandmother if she tried to leave. Wallace, Harper and April held her head under water when she said she wanted to leave. The victim was rescued by her sister, who called the police.


Texas Fired Her For Dissing 'Creationism'
Legal Topics | 2008/07/03 15:58
The longtime director of science curriculum claims the Texas Education Agency illegally fired her because she forwarded an email announcing a lecture by a speaker who opposes teaching creationism in science classes. Christina Castillo Comer claims the TEA's official "neutral" position on creationism is an unconstitutional dodge to allow Texas public schools to push religion under the guise of science.

Comer was director of science for the TEA's Curriculum for more than 10 years. She claims the agency fired her in November 2007 "for contravening the Agency's unconstitutional 'neutrality' policy by forwarding an email to other science educators announcing an upcoming lecture about evolution and creationism."

The federal complaint cites this TEA memorandum recommending that Comer be fired: "On October 26, 2007, Ms. Comer forwarded from her TEA email account to a group of people, including two external email groups, that announced a presentation on creationism and intelligent design entitled 'Inside Creationism's Trojan Horse.' The email states that the speaker [Barbara Forrest] is a board member of a science education organization, and the email clearly indicates that the group opposes teaching creationism in public education. ...

When Dr. Jackson asked Ms. Comer about this situation, she replied that she was only forwarding information. However, the forwarding of this event announcement by Ms. Comer, as the Director of Science, from her TEA email account constitutes much more than just sharing information. Ms. Comer's email implies endorsement of the speaker and implies that TEA endorses the speaker's position on a subject on which the agency must remain neutral. Thus, sending this email compromises the agency's role in the TEKS revision process by creating the perception that TEA has a biased position on a subject directly related to the science education TEKS."

Comer says that the TEA does indeed have a biased position on the subject: "Creationism is a religious belief. Teaching creationism as science in public schools violates the Establishment Clause of the First Amendment. ... The Texas Education Agency has a policy of purported 'neutrality' on teaching creationism as science in public schools. By professing 'neutrality,' the Agency credits creationism as a valid scientific theory. Creationism, however, is not a valid scientific theory; it is a religious belief. The Agency's policy is not neutral at all ... The Agency's 'neutrality policy has the purpose or effect of endorsing religion, and violates the Establishment Clause. ...

"Similarly, the Agency's firing of its Director of Science for not remaining 'neutral' on this subject violates the Establishment Clause, because it employs the symbolic and financial support of the State of Texas to achieve a religious purpose. ... Finally, the Agency fired Director Comer without according her due process as required by the Fourteenth Amendment - a protection especially important here because Director Comer was fired for contravening an unconstitutional policy."
   


NY Sets Bar High for Adult Victims of Predatory Clergy
Legal Topics | 2008/06/30 17:30

New York’s highest court has set the bar prohibitively high for proving certain civil cases against predatory clergy by ruling that a woman cannot sue a rabbi who had an affair with her because she was not “uniquely vulnerable and incapable of self-protection."

Some state and federal courts have upheld breach of fiduciary duty claims arising from sexual misconduct by clergy with adult parishioners whom they are counseling. A fiduciary duty exists, those courts said, if the clergy member “held himself out as possessing the education and experience” of a professional counselor.

Only last month, an intermediate New York appeals court recognized a fiduciary duty claim for the first time in the case of a woman who sued a Catholic priest for damages arising out of her adulterous relationship with him. Doe v. Roman Catholic Diocese.

But the New York Court of Appeals pretty much slammed the door on such cases in finding last week that Adina Marmelstein had “insufficiently demonstrate[d] that she developed a fiduciary relationship” with Rabbi Mordecai Tendler.

“Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric,” the opinion said.

“To establish that a course of formal counseling resulted in a cleric assuming 'de facto control and dominance' over the congregant,” it continued, “a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.”

Tendler, who officiated at an Orthodox Jewish synagogue in New Hempstead, N.Y., counseled Marmelstein for emotional problems. They allegedly began their affair after he told her that “a course of sexual therapy” would make her more attractive to men and help her find a husband.

Marmelstein's allegations were insufficient, Judge Victoria A. Graffeo wrote for the appeals court, because she “has shown only that she was deceived by Tendler, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests.”

In a footnote, Graffeo said she was not suggesting that “a cleric who is also a licensed professional, such as a psychiatrist, psychologist or attorney, could not assume fiduciary obligations under existing laws and the secular standards that govern the practice of those professions.”

But her decision means clerics who are not licensed professionals cannot be sued for sexual misconduct unless the plaintiff somehow meets a “vulnerability” standard which completely disregards the inherent “control and dominance” that clergy assume over congregants.

As a more enlightened New York appellate judge put it, “The hallmark of fiduciary duty -- an imbalance of power between the parties -- is especially manifest in the relationship between a priest and parishioner.” Langford v. Roman Catholic Diocese, 271 A.D.2d 494 (2000).



"Parrot Fever" Suit May Not Fly
Legal Topics | 2008/06/27 16:16

The family of a Texas man who allegedly died of a disease contracted from a sick cockatiel has sued PetSmart for wrongful death, but the fate of similar cases around the country suggests their products liability theory will not fly.

The cockatiel that Amanda de la Garza bought from the Corpus Christi PetSmart store on Sept. 30, 2006 was allegedly suffering from a bacterial infection that crossed over to her father and caused him to be infected with the disease psittacosis, also known as “parrot fever.” Joe de la Garza, 63, died of psittacosis two weeks later.

At least five states have rejected products liability claims against pet stores for selling a defective animal, with courts in Missouri and Ohio taking that position in cases involving parrots. “We ... conclude that a parrot is not a product for purposes of products liability,” the Ohio Court of Appeals said in Malicki v. Koci, 700 N.E.2d 913 (1997).

But in a petition filed earlier this month, the de la Garza family allege that at the time “the bird left the hands of PetSmart, Inc,, the bird was diseased, defective, and unreasonably dangerous” and its defective condition was “a producing cause” of the death of Joe de la Garza.

“As a result, PetSmart, Inc. is strictly liable to the Plaintiffs herein,” the suit says.

A PetSmart representative told KIII-TV in Corpus Christi that the company is not aware of any confirmed cases of humans contracting psittacosis from humans. The de la Garzas insist that “The diseases of birds can cross over to the human population and can cause disease in the people who buy the birds.”

Amanda de la Garza also fell ill and was hospitalized “as a result of psittacosis,” the suit alleges. But whatever the scientific facts may be, PetSmart could argue that it cannot be sued for products liability as a matter of law.

In the seminal case of Whitmer v. Schneble, 331 N.E.2d 115 (1975), the Illinois Appellate Court ruled that an animal could not be a product since its "nature" is not "fixed" when it leaves the hands of a seller.

The Missouri Court of Appeals agreed with that view in rejecting a products claim filed by a parrot buyer who allegedly contracted psittacosis from the bird. “It seems unreasonable for us to hold a seller liable for changes potentially wrought upon a 'product' by the purchaser, while the item was completely outside the seller's control,” it said in Latham v. Wal-Mart Stores, 818 S.W.2d 673 (1991).

New York, Connecticut and Oregon have ruled otherwise. As a New York trial judge said in Beyer v. Aquarium Supply Co., 404 N.Y.S.2d 778 (1997),

[T]here is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product.
But in the most recent case on point -- Blaha vs. Stuard, 640 N.W.2d 85 (2002) --- the South Dakota Supreme Court found a dog was not a product. And you can expect the generally conservative, pro-business Texas courts to follow the Whitmer line of cases.

The de la Garzas also allege that PetSmart and Rainbow Exotics, a Waco bird supplier, are liable for negligent inspection and handling of the cockatiel and failing to warn Amanda de la Garza that “bird disease could affect humans.”

Amanda, the suit says, noticed the bird “was subdued and had separated itself from the other birds offered for sale,” but “was told that the bird was having a 'bad day.'”

Plaintiffs have recently sued PetSmart in Massachusetts and Rhode Island, alleging family members died as a result of receiving organs from donors which had been infected with a virus contracted from pet hamsters. Those cases, however, do not allege products liability.



Naked Cowboy Sues M&M's
Legal Topics | 2008/06/24 17:24
"This is the case of The Naked Cowboy versus The Blue M&M," afederal judge wrote in allowing The Naked Cowboy's lawsuit against Marscandy and Chute Gerdeman ad agency to proceed. "Plaintiff Robert Burckis a 'street entertainer' who performs in New York City's Times Square,wearing only a white cowboy hat, cowboy boots, and underpants, andcarrying a guitar strategically placed to give the illusion of nudity."He claims Mars & Chute Gerdeman based a Times Square billboard adon his character, "featuring a blue M&M dressed 'exactly like TheNaked Cowboy,' wearing only a white cowboy hate, cowboy boots, andunderpants, and carrying a guitar."

U.S. District Judge Denny Chin kindly attached photos of the two characters at the top of his ruling.

Burck,who has registered The Naked Cowboy as a trademark, claims defendants'animated cartoon ad on two enormous billboards in Times Square violatedhis trademark and his right to publicity.

Chin dismissed thetrademark complaint, finding that New York law "protects the name,portrait, or picture of a 'living person,' not a character created or arole performed by a living person. Burck may proceed, however, with hisfalse endorsement claim, for he plausibly alleges that consumers seeingdefendants' advertisement would conclude - incorrectly - that heendorsed M&M candy."


Supreme Court weighs whales vs war preparation
Legal Topics | 2008/06/24 16:41
The Supreme Court will have the final say on whether war preparation trumps whale protection.

Acting at the Bush administration's urging, the court agreed Monday to review a federal appeals court ruling that limited the use of sonar in naval training exercises off Southern California's coast because of its potential to harm marine mammals.

Sonar, which the Navy relies on to locate enemy submarines, can interfere with whales' ability to navigate and communicate. There is also evidence that the technology has caused whales to strand themselves on shore.

The Navy argues that the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes its ability to train sailors and Marines for service in wartime in exchange for a limited environmental benefit. The Navy says it has already taken steps to protect beaked whales, dolphins and other creatures in balancing war training and environmental protections, officials said.



Fight over White House subpoenas heads to court
Legal Topics | 2008/06/23 15:55
Congress issued its demands. The White House refused. Now it's up to a federal judge to settle a dispute over documents and testimony regarding fired federal prosecutors.

Lawyers for the White House and Congress were headed to court Monday to argue the scope of the president's power to ignore legislative subpoenas. Court fights on this topic are rare and are normally reserved for questions of whether the White House has to cooperate with a criminal investigation, not with a congressional inquiry.

The Democratic-led House Judiciary Committee is demanding documents and testimony from the president's chief of staff, Josh Bolten, and former counsel Harriet Miers about the firing of U.S. attorneys. The scandal helped force the resignation of former Attorney General Alberto Gonzales.

The White House says Miers and Bolten do not need to comply with the subpoenas, citing executive privilege, the principle that one branch of government can't make another branch do something.

Judges normally try to stay out of disputes between the executive and legislative branches. The Bush administration wants the court to avoid this fight, too. Lawmakers say the court is obligated to help enforce a congressional subpoena.



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