LESBIAN/GAY LAW NOTES June 1994 Lesbian & Gay Law Association of Greater New York Editor-in-Chief: Professor Arthur S. Leonard, New York Law School, 57 Worth Street, New York, N.Y. 10013 ASLeonard@aol.com Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118 (C) 1994 by Lesbian & Gay Law Association of Greater New York ISSN 8755-9021 Contributing Writers: Paula L. Ettelbrick, Public Policy Director, National Center for Lesbian Rights and Adjunct Professor, NY Law School Kenneth Rutman, Adjunct Professor, New York Law School Steven Kolodny, Esq., New York Barnaby Millard, Esq., New York Kevin Isom, Esq., Atlanta Dirk Williams, Boston Robert Bourguignon, Student, Brooklyn Law School. New York High Court Holds Schools Can Bar Military Recruiters Under Discrimination Policies The New York Court of Appeals reversed trial and intermediate appellate court rulings and held that sec. 2-a of the N.Y. Education Law does not require state-chartered schools to grant unqualified access to military recruiters. Lloyd v. Grella, 1994 WL 161326 (May 3). sec. 2-a grants military recruiters access to educational institutions "on the same basis" as all other employment recruiters. In December 1991 the Rochester City School District adopted a resolution forbidding city schools from affording access to recruiters from any "organization" that "has a stated policy which discriminates against any person on the basis of race, color, religion, handicap, sex, creed, political beliefs, age, economic status, or sexual orientation, until such time as these discriminatory policies are discontinued." Recognizing that this would exclude military recruiters, the District's resolution also provided that all students be notified annually of the current Armed Forces policy on homosexuality, and provided that the policy did not prohibit school counselors from giving students information about Armed Forces employment opportunities and how to contact the Armed Forces about enlistment. Jean Lloyd, mother of a Rochester High School student, sued in state supreme court contending the policy was invalid under sec. 2-a. The trial judge agreed, finding the wording of the statute open to differing interpretations and concluding that legislative history supported guaranteeing military access if any other employers were granted access. The appellate division affirmed without further analysis. Writing for the court, Judge Joseph W. Bellacosa held that the statutory language was clear, thus resort to legislative history was unnecessary. Bellacosa asserted that the statute "specially protects military recruiters by granting them equal access. It does not correspondingly divest local school boards of their traditional discretionary powers to adopt protocols barring stated discriminatory policies and practices such as are at issue in this case. The use of the phrase `on the same basis' in Education Law sec. 2-a is synonymous with `equal access', not unqualified access. . . [The policy] at issue here bars access to all recruiters when they fail to meet specified criteria tailored for the Rochester school system. The fact that it significantly targets a concededly discriminatory entity does not divest it of its uniform applicability." While holding that clear language did not require resort to legislative history, Bellacosa reviewed the history and concluded it was consistent with the court's holding, finding that the proponents of the bill insisted that they were seeking equal access, not special access, for the military. "Plainly, when school board policymakers exclude recruiters `on the same basis,' like those who statedly discriminate against homosexuals, the statute's special admittance pass for the military is not operative. it does not override the evenhanded exclusion of all employers who proclaim their discriminatory policies." "We are also satisfied," he wrote, "that the holdings of the Appellate Division and the Supreme Court undermine well-settled principles protecting the discretion traditionally reposed in local school districts regarding access to students on school property. . . In effect, we confidently conclude that Education Law sec. 2-a does not tolerate the contradiction of encouraging the efforts of schools in inculcating abhorrence of discrimination, while compelling the admittance of openly discriminating potential employers." In a brief dissent, Judge Richard Simons argued that, as the only entity that has a "stated policy" of discriminating against gays, the Armed Forces was clearly the direct target of the Rochester resolution. As such, he argued, the school board was excluding the only employer that the legislature insisted should be given access, and was not adopting a "neutral" policy. Other employers who discriminate against gays without having a "stated policy" would not be excluded, he argued. Simons also argued that as the resolution referred to the Armed Forces explicitly, it was clear that they were the target of the policy. Amicus briefs supporting the School Board's policy were filed by the Association of the Bar of the City of New York, the New York State School Boards Association, the Association of American Law Schools, the American Civil Liberties Union, the Society of American Law Teachers, and Lambda Legal Defense & Education Fund. A group called "Parents for the Restoration of Values in Education" filed in support of Jean Lloyd. On May 6, John M. Regan, Jr., counsel for Jean Lloyd, filed a bizarrely offensive motion for reargument with the Court of Appeals, attacking the court for making a "political" decision and impugning the professional ethics of the judges. Colorful reading for the judges' clerks, no doubt! The court's decision lit a fire under U.S. Rep. Gerald Solomon, a Republican from Glens Falls, N.Y., whose outrage at the expulsion of military recruiters from public schools, and previously from the State University of New York, led to introduction of an amendment to pending appropriations legislation, threatening to end federal Defense research money to any school that bars military recruiters, which was included in an appropriations measure that passed the House on May 23. We've heard this song before: such a provision has been part of federal law since the late 1970s, but has never been enforced, because the Defense Department was never willing to cut off its nose to spite its face by terminating contracts on political grounds with scientists whose work was deemed crucial to the Defense effort. A.S.L. LESBIAN/GAY LEGAL NEWS 9th Circuit Frees Lesbian Moms In Alleged Child Abuse Case Much remains unsaid in the 9th Circuit Court of Appeals' opinion in Martineau v. Angelone, 1994 WL 186772 (May 17), a habeas corpus case in which a lesbian couple was sentenced to lengthy prison terms for child abuse in the death of one of the women's children. One suspects the appellate judges concluded that these women were railroaded due to anti-gay prejudice, although such concerns are kept below the surface. However, the egregiously long prison sentence (20 years) in a case involving little more than conjecture and supposition raises suspicions in any fair-minded reader. Paula Martineau and Georganna Lagen lived together in Las Vegas with Lagen's two childen, 4-year old Robert and 27-month-old Michelle. Lagen, an Air Force officer, worked at Nellis Air Force Base, and left her children with a baby-sitter while at work. On July 19, 1984, Lagen picked up the kids from the sitter at 3:30 p.m. At 8:55 p.m., Martineau called 911 and reported that Michelle was not breathing. Paramedics responded but were unable to revive her. She had no obvious injuries or bruises. The women told the paramedics that CPR had been attempted before calling 911. Michelle was brain-dead on arrival at the hospital, and died several days later. The state charged the women with murder, aiding and abetting murder, and child abuse. They were tried jointly in 1987, and convicted of child abuse and involuntary manslaughter, based on the state's theory that their delay in calling 911 caused Michelle's death. (The evidence at trial was insufficient to sustain the murder charges, since there was no evidence of beating.) Each woman was sentenced to 20 years for child abuse and 6 years for involuntary manslaughter. The Nevada Supreme Court reversed the manslaughter convictions, but affirmed the child abuse convictions, finding that both women were responsible for Michelle's well-being and that there was testimony she might have survived had she reached the hospital sooner. In an opinion by Circuit Judge Goodwin, the court of appeals found that there was no evidence on the record from which the trial court could have found beyond a reasonable doubt "that any time elapsed between the time Michelle's injuries became apparent and the time appellants called 911; nothing presented at trial proved that Lagen and Martineau knew Michelle was seriously injured, yet did nothing." Goodwin produced an extensive, detailed review of the trial evidence. "We recognize that the death of a young child such as Michelle is an unnatural tragedy, and that, in the face of such a tragedy, there is a societal incentive to assign blame, to hold someone responsible," he wrote. "However, much as the death of a two-year-old child demands an explanation, we must also be concerned about due process and the constitutional mandate that all persons be presumed innocent until proven guilty. . . Given the Nevada Supreme Court's conclusion that the evidence was insufficient to permit a jury to convict for manslaughter, the remaining evidence, circumstantial, medical and direct, simply cannot be sufficient to convict appellants of willful neglect or delaying in seeking medical care. Nothing contradicts appellants' claim that they did everything they could to save Michelle." Thus, after five years in prison, the court ordered that the district court grant the writ ordering the appellants' release. Thomas Beatty and Aubrey Goldberg, both of Las Vegas, represented the appellants. A.S.L. Trial Courts Split on Same-Sex Couple Adoptions; Florida Supreme Court to Hear Adoption Case District of Columbia Family Court Chief Judge Susan Winfield denied the petition of a gay male couple to jointly adopt the daughter they have been raising as a result of a prior single parent adoption. In In re Adoption Petition of Bruce M. and Mark D., 20 Fam.L.R. (BNA) 1307, Case No. A-62-93 (April 20), the court gave a strict construction to the statutory language of the adoption law, finding that it was never the intent of the legislature to permit multiple unmarried adoption petitioners to jointly adopt. The court likewise rejected the petitioners' alternative argument that Mark D. should be allowed to adopt as a second parent without terminating the rights of the adoptive father, stating that the termination provision is mandatory. The court simply disagreed with the analysis of a prior court in the District of Columbia which granted the cross-petitions for adoption sought by a lesbian couple and their two children. The best interests of the child simply cannot overrule the strict language of the statute in every instance, held Winfield. While recognizing that the child is being raised in a loving and nurturing home, and noting the fears of what would happen to the child should Bruce M., the adoptive father, die, the court gave little consolation in stating that Mark would retain the option of re-petitioning to adopt at that time. By contrast, an Illinois circuit court, boosted by the decisions from the highest courts of Vermont and Massachusetts, has granted a lesbian couple's motion for reconsideration of a previous dismissal of their joint adoption petition, which was sought by the guardian ad litem. In In re Petition of E.S. and R.L., 1994 WL 157949 (March 14), the court was guided by the statutory construction used by the Vermont and Massachusetts decisions, since Illinois had no cases on point factually or legally. The court interpreted the adoption law to allow for an adoption to be brought by "two unmarried individuals, including a parent of the child to be adopted. Recognized as a joint petitioner, and as a consenting parent, the mother's parental rights are protected. . . ." Given this language, it remains unclear whether the court would allow a joint adoption where one of the parties was not already a legal parent. Nonetheless, the court determined that the child's best interests should be paramount in interpreting the law. The court rejected constitutional claims, finding a viable solution through interpretation of the law. We have no word as to whether the guardian ad litem, who opposed the adoption, will or can appeal. P.L.E. The Florida Supreme Court has announced that it will review the decision in Dep't of Health and Rehab. Services v. Cox, 627 So.2d 1210 (Fla.App. 1993), in which the court of appeal upheld the constitutionality of a Florida law disqualifying gays from adopting children. The court of appeal decision came as a surprise, because several Florida trial judges had found the ban unconstitutional. A.S.L. North Carolina Court: Calling People "Gay" Not Defamatory Per Se; New York Court: Use of Model's Picture to Sell Gay Porn May Be Defamatory Per Se In Donovan v. Fiumara, 1994 WL 164770 (May 3), the North Carolina Court of Appeals addressed the question whether an allegation that an individual is "gay" or "bisexual" may set forth a cause of action for slander. The plaintiffs claimed that the defendant had told other persons in January and June, 1990, that the plaintiffs were gay and bisexual. The plaintiffs asserted that these statements were false, that the statements amounted to slander, and that as a direct result the plaintiffs had suffered injury to their reputations, humiliation, and emotional distress. Each claimed actual damages in excess of $10,000. The trial court, however, granted the defendant's motion to dismiss for failure to state an actionable claim. The court of appeals affirmed the dismissal. Writing for the court, Judge John noted that North Carolina law distinguishes between two categories of oral defamation, or slander. In "slander per se," false remarks in themselves form the basis of an action for damages, and both malice and damage are presumed as a matter of law. In "slander per quod," the false remarks may sustain an action only when they cause some special damage, and both malice and special damage must be alleged and proved. Since "special damage" means pecuniary loss, but the plaintiffs in this case had alleged no such los, the court held that plaintiffs did not establish a claim for slander per quod. North Carolina recognizes only three types of statements as supporting a claim for slander per se: those which (1) charge the plaintiff with a crime or offense involving moral turpitude, (2) impeach his trade or profession, or (3) impute to him a loathsome disease. Plaintiffs argued that because engaging in certain activity practiced by some homosexuals is a felony under N.C. Gen. Stat. sec. 14-177, the defendant's statements that plaintiffs are gay or bisexual imputed to them the commission of a crime. Thus, plaintiffs argued that the statements fell within the first type of statement supporting a claim of slander per se, citing in support Buck v. Savage, 323 S.W.2d 363 (Tex. Civ. App. 1959) and Head v. Newton, 596 S.W.2d 209 (Tex. Civ. App. 1980). The court disagreed, noting that the statute broadly prohibited conduct such as bestiality, which is "not necessarily embraced within the terms `gay' and `lesbian,'" while the statute did not proscribe sexual preference or the status of being homosexual. In order to violate the statute, a specific act must be committed. Since "the label of `gay' or `lesbian' does not carry with it an automatic reference to any particular sexual activity," the court opined that referring to a person as gay or bisexual was not tantamount to charging the person with the commission of a crime. The court noted that numerous other courts had reached a similar conclusion, citing Moricoli v. Schwartz, 361 N.E.2d 74 (Ill. Ct. App. 1977), Morrisette v. Beatte, 17 A.2d 464 (R.I. 1941), and Steffan v. Aspin, 8 F.3d 57 (D.C.Cir. 1993), in which a panel of the D.C. Circuit rebuffed the Defense Department's argument that a declaration of homosexual status gives rise to a presumption that the declarant will engage in homosexual conduct in violation of military law. The court also noted that still other courts have concluded that a false accusation of homosexuality constitutes slander per quod, requiring allegation and proof of special damages as a condition of recovery, citing Boehm v. American Bankers Ins. Group, Inc., 557 So.2d 91 (Fla. Dist. Ct. App. 1990); Key v. Ohio Dept. of Rehab. & Corr., 598 N.E.2d 207 (Ohio Ct. Cl. 1990); Hayes v. Smith, 832 P.2d 1022 (Colo. Ct. App. 1991). Thus, the court held as a matter of law that the defendant's alleged statements did not fall within any of the categories of defamatory utterances considered slander per se. "As North Carolina progresses through the mid 1990's," wrote Judge John, "we are unable to rule the bar allegation that an individual is `gay' or `bisexual' constitutes today an accusation which, as a matter of law and absent any `extrinsic, explanatory facts'. . . per se holds that individual up to `disgrace, ridicule or contempt.'" Individuals who feel themselves falsely impugned as homosexual, suggested John, may pursue an action only based upon pleading and proof of special damages. K.I. The N.Y. Appellate Division, 1st Dept., affirming the denial of a motion to dismiss, has permitted a male model to go forward with a defamation suit against the publishers of The Advocate for the allegedly unauthorized use of his picture to advertise a photo book called "Lust The Body Politic". Rejent v. Liberation Publications, Inc., 1994 WL 182104 (May 12). Justice Sullivan found that "lust", as used in the ad's caption, carried a "negative overtone of sexual promiscuity" and was thus "reasonably susceptible of the defamatory connotation that plaintiff is lustful and sexually promiscuous". Additionally, Sullivan found that the context in which the ad was placed, "surrounded by innumerable other suggestive advertisements of live sex videos, telephone sex talk, erotic devices and sexual literature," heightened the defamatory impression that plaintiff is sexually lustful. The publisher's attempt to convince the court that "lust" was simply sexual "desire," "appetite," or "craving" won Sullivan's disfavor. He described such a definition as "innocuous" and noted that if such were the meaning of the term, then it would not have been used by the publisher to describe the photo book. The court also noted that libelous words imputing sexual misconduct to a man have been held defamatory per se, rejecting on constitutional grounds the notion that there are different standards for men and women with respect to defamation based on the imputation of unchastity. This issue, however, had not been raised at trial and was left open by the appellate court. In dissent, Justice Kupferman argued that plaintiff's voluntarily posing for a sexually suggestive picture rendered the defamation suit unsubstantiated, but noted that plaintiff may have a cause of action for invasion of privacy. R.B. Ironically, just weeks after the 1st Department's decision, the Bergen (N.J.) Record (May 24) reported that Peter Floris, a bodybuilder who lives in Lodi, N.J., filed a similar lawsuit against Wild Boyz, Inc., the Chameleon Club in Island Park, N.Y., and O'Henry Production Co., claiming invasion of privacy and defamation based on publication of an upper body photo of Floris on the cover of a magazine, "On the Wild Side," published by the defendants to promote their gay club. Floris claimed to have suffered emotional distress upon learning of the publication: An anonymous person placed a copy of the magazine in his mother's mailbox! Floris and his photographer, who took the photos for other purposes connected with Floris' bodybuilding career, claim that they had turned down all requests to use his photos for gay erotic publications. Floris's photo appeared on a popular postcard, which led to requests from gay businesses. A.S.L. Domestic Partnership Updates Austin, Texas, voters approved a ballot measure May 7 that repeals a domestic partnership policy enacted by the city council last year. Sixty-two percent of the voters supported repeal. The ballot measure was heavily promoted by conservative religious groups, which complained as vociferously about extension of health benefits to heterosexual, unmarried partners as to homosexual partners. * * * Rochester, New York, enacted two domestic partnership laws on April 14, when the mayor approved bills passed by the City Council. A bill extending benefits to partners of city employees passed 7-2. A bill to establish a registry of partners passed 5-4. The main controversy about the registration bill concerned whether it would encourage illegitimacy by removing an incentive for heterosexuals to marry before having children. * * * The Los Angeles City Council voted May 10 in favor of extending disability insurance, the employee assistance program, and catastrophic illness leave policies to recognize domestic partners of city employees, and directed the city attorney to prepare a charter amendment that would let the city offer pension benefits to domestic partners, according to the Los Angeles Times (May 11), which noted that the council had approved extension of health and dental benefits to city employees' partners in February. However, this coverage only extends thus far to non-union employees, since collective bargaining agreements for the bulk of city employees are still in the process of negotiation. The Council also instructed the city's Personnel Department to notify other city employee plan administrators (Department of Water & Power, Police Department, Fire Department) that they should bring their plan coverage into line with the city's new policies, according to BNA's Daily Labor Report No. 92 (May 16). * * * The Baltimore City Council rejected a proposal to set up a domestic partnership registry and recognize domestic partners for hospital visitation purposes. The May 9 vote was 10-7. * * * Fulton County, Georgia, Superior Court Judge Isaac Jenrette ruled April 28 in McKinney v. City of Atlanta, 20 Fam. L. Rep. (BNA) 1326 (5/17/94), BNA Daily Lab. Rep. No. 82 (5/2/94), p. A-17, that the Atlanta city government lacked authority to grant benefits to domestic partners of city employees. The city enacted such a law in 1993, with benefits scheduled to go into effect Jan. 1, but implementation had been stalled by an opinion issued by Georgia Attorney General Michael Bowers to the same effect as Jenrette's opinion. The city announced it would appeal. The opinion does not affect the portion of the law that allows domestic partners to register with the city and receive an official certificate. According to Jenrette, only the state has authority to legislate as to marital or spousal status, which he found was the actual effect of the law. * * * Bureau of National Affairs (BNA), publisher of U.S. Law Week and other legal publications, has concluded a contract with the Washington- Baltimore Newspaper Guild under which domestic partnership benefits will be extended to partners of employees, both same-sex and opposite-sex. BNA has recognized domestic partners for other purposes, such as bereavement leave, for several years, and has a longstanding policy forbidding sexual orientation discrimination. * * * The New York Times Co. has concluded a collective agreement with the Newspaper Guild, representing editorial and clerical employees, that will extend eligibility for health insurance to domestic partners. The Guild represents about a third of the employees of the newspaper, according to the Washington Blade (May 13). Suprisingly, the Times has not reported this development in its own news pages. * * * The Akron (Ohio) Beacon Journal (May 26) reported that Genentech, Inc., has become "the largest high-tech company to provide health benefits to domestic partners of gay employees." The policy went into effect June 1. * * * The Campus Senate at the University of Maryland at College Park voted May 9 to request implementation of domestic partnership recognition and benefits. The decision whether to implement such a policy lies with University President William Kirwin, who had previously stated public support for the concept. * * * State Farm Insurance Company recognized a domestic partnership based on a filing under the Laguna Beach, California, domestic partnership ordinance, according to a report in Bay Area Reporter. Openly gay Councilman Robert Gentry, who is registered with his partner, filed a claim for possessions lost by Gentry and his partner when their house burned down. State Farm at first denied the claim for the partner's possessions under Gentry's homeowners policy, but when Gentry then submitted a copy of the partnership registration, the company changed its decision and provided the benefits. State Farms' regional spokesperson, Robert Blodgett, said that "as the law moves, so do we. We are going to look at the local laws and do whatever is consistent with that community. Laguna Beach recognizes domestic partners officially. The decision was made to handle it the same as a marriage certificate. To us, that shows that the persons are not just roommates, but they have some type of legal relationship." * * * Ontario, Canada's, New Democratic Party, achieved control of the provincial legislature with a platform advocating full recognition for domestic partners. Now the party is acting on its promise, having introduced implementing legislation. However, recognizing that the issue is a hot one, the party caucus voted to allow members their independence on this issue. As summarized in the Buffalo News of May 15, "employers would be required to pay family health benefits to the gay partners of workers. The provincial Human Rights Code likewise would be amended to ensure gay and lesbian couples have access to the same benefits as heterosexuals, and the definition of a spouse would be altered to include homosexual unions." Same-sex couples would be allowed to adopt children jointly, as a couple. On a first reading May 15, the bill received an affirmative vote of 57-52. (See BNA Daily Labor Report No. 98, 5/24/94.) Two more votes are required for final passage. Many MPs were absent for the May 15 vote, and it is uncertain whether final passage will be obtained prior to the scheduled June 15 summer recess. The 70 NDP members are about evenly split on the measure, with a similar split among the 35 Liberal Party members; the 22 Conservatives are seen as solidly opposed. * * * Responding to a request for a ruling from attorneys for the Connecticut Civil Liberties Union, Connecticut Comptroller William E. Curry, Jr., announced in an April 15 letter that he had instructed the state's Employee Services Bureau's Benefits Division that same-sex domestic partners should be treated the same as spouses for purposes of authorizing emergency withdrawals under the state's Deferred Compensation Program. Such withdrawals are authorized "in the event of severe financial hardship to a participant resulting from a sudden and unexpected illness or accident of the said participant's same-sex domestic partner. . ." * * * Duke University President Nan Keohane has recommended adoption of a domestic partnership policy for same-sex partners of university employees. The proposal now goes to a faculty compensation committee. The Charlotte Oberserver (May 20) reported that Northern Telecom, a corporation located in North Carolina's "Research Triangle" area, will be providing domestic partnership benefits to both same-sex and opposite-sex couples beginning this summer. * * * The University of Wisconsin at Madison and Physicians Plus, the exclusive contractor for student health coverage at the university, have concluded an agreement to provide coverage to domestic partners of students, whether same-sex or opposite-sex. The agreement will go into effect Aug. 15 if it is approved by the state Office of the Commissioner of Insurance, according to a report in the May 20 Capital Times. * * * The University of Michigan board of regents voted May 20 to approve a domestic partnership benefit plan for university employees, although implementation will await working out details of how to determine eligibility, according to a story in the Detroit Free Press of May 21. * * * Reuters reports that the British Broadcasting Corporation (BBC) will give to gay employees who have a formal commitment ceremony the same paid one-week honeymoon holidy that it gives to newly-married employees. The benefit as originally announced also included a $110 gift voucher as a present to the newlyweds, but after some conservative members of Parliament denounced the new policy, BBC suspended its award of gift vouchers to all couples, gay or non-gay, while subjecting the policy to a "review"! * * * Greenland, a Danish "dependency," has agreed to adopt Denmark's gay marriage law and apply it locally, the parliament having voted in February to ask the Danish parliament to extend the law to Greenland. * * * A parliamentary committee in Sweden has approved national domestic partnership legislation, with a full parliamentary vote expected in June. A.S.L. Initiative & Referenda Updates The Oregon Citizens Alliance (OCA) achieved enactment of four more ballot measures in voting May 17 in Cottage Grove, Oakridge, Veneta and Roseburg, but failed to attain the 60 percent supermajority necessary for passage in suburban Gresham, a city that had rejected Ballot Measure 9 in 1992, where OCA achieved just under 51%. OCA also achieved a bare majority in Oakridge, with larger majorities ranging up to 65% in Roseburg. After the vote, OCA leaders crowed about a "moral victory" at having attained a majority in Gresham. All the measures would prohibit local governments from adopting any gay rights policies. All are unenforceable due to a state law passed last summer that bars municipalities from singling out people for differential treatment based on homosexuality. * * * The Washington State Supreme Court announced May 12 that it would not consider challenges to various anti-gay initiatives now circulating in the state, dismissing a lawsuit brought by a coalition of civil rights and religious groups. The plaintiffs sought to prevent the divisiveness of a state-wide anti-gay initiative campaign by getting the high court to bar the measures from the ballot, but to no avail, according to a May 13 report in the Seattle Post- Intelligencer. * * * Ohio Attorney General Lee Fisher will file an amicus brief in the pending challenging to Cincinnati's Issue 3, an anti-gay initiative intended to repeal taht city's gay rights law and forbid the adoption of any new pro-gay city policies. Fisher will file in support of Equality Foundation, the organization litigating against Issue 3. Other amici include the Ohio Psychological Association and the Ohio Human Rights Bar Association. U.S. District Judge Arthur Spiegel has scheduled a June 20 trial, having preliminarily enjoined Issue 3 from going into effect after its passage by 62% of the voters in November. See Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F.Supp. 1235 (S.D.Ohio 1993). * * * The U.S. Supreme Court having refused to intervene in the ongoing dispute over the validity of a repeal initiative that passed in Tampa, Florida, last year, the leaders of the Take Back Tampa group vowed to seek a new referendum next year. Although voters approved repeal of the city's gay rights ordinance, the Florida Supreme Court threw out the result based on violations of state election laws during petitioning. A.S.L. Military Law Notes The U.S. Court of Appeals for the D.C. Circuit heard argument en banc in Steffan v. Perry on May 11. News reports indicated that the bench appeared sharply split over constitutionality of the military policy, with most speculating that Steffan may lose his appeal at this stage by one vote. * * * Deputy Defense Secretary John Deutch, responding to criticism by U.S. Rep. Gerry Studds (D.- Mass.), announced that the Pentagon will no longer attempt to recoup scholarships or enlistment bonuses from lesbian and gay students or service members who are discharged from ROTC, Reserves or other units because they are gay, according to a May 18 Washington Post story. * * * Chico State University in California graduated its last ROTC class May 21. The school has discontinued ROTC due to the Pentagon's anti-gay policies. Other schools that have banned ROTC recently over this issue include John Jay College in New York City and Sacramento State University, which will stop enrolling new students and phase out ROTC as current students graduate. * * * On May 21, a panel of four military officers constituting a Federal Recognition Board held what may be the first hearing applying the new "don't ask, don't tell" policy, according to a story in the May 22 Sacramento Bee. The Board was convened in the case of 1st Lt. Andrew Holmes, who told his California National Guard superiors last spring that he is gay. The National Guard is required to enforce U.S. Defense Department personnel regulations, and the Recognition Board is to determine whether to extinguish Lt. Holmes' recognition, thus disqualifying him from continued National Guard Service. Holmes' attorney, Paul Wotman, argued at the hearing that Holmes should be retained due to his exemplary service. Captain Tom Tinti, a lawyer representing the Guard, countered: "The policy does not distinguish between `exemplary' and `poor' service." If Holmes is discharged, Wotman contemplates filing a suit attacking the current policy under state discrimination law as well as the constitutions, state and federal. On May 22, the panel announced that it would recommend to the California National Guard that Holmes be dismissed. A.S.L. * * * In U.S. v. Modesto, 1994 WL 174428 (U.S. Army Ct. of Military Rev., May 10), the appellant, a 17-year veteran who had attained the rank of colonel in the Dental Corps, appealed his conviction of eight specifications of "conduct unbecoming an officer and a gentleman," involving commission of sodomy, engaging in mutual masturbation, indecently touching another male, cross-dressing in public, performing as a female impersonator in a nightclub, and being caught "imitating" fellatio with two other men. The appellant was sentenced to dismissal, confinement for 9 months, and forfeiture of pay during confinement. On appeal, he raised two specifications: failure to suppress certain evidence seized pursuant to an allegedly overly broad serach warrant whose execution resulted in the discovery of some very incriminating evidence of impermissible sexual activity, and the sufficiency of the evidence as to the charges relating to cross-dressing and performing as a female impersonator. After extensive review of the facts, the warrants were upheld as not overbroad, and the evidence was found sufficient to sustain the charges concerning cross-dressing and female impersonation, notwithstanding that "cross-dressing in a public place has First Amendment implications. . ." S.K. * * * In U.S. v. Huff, 1994 WL 164471 (AFCMR, Apr. 18), a three judge panel affirmed the dismissal and sentence of an Air Force Lieutenant who was court-martialed for making a pass at another soldier. Apparently, following a night of drinking Huff and the other soldier found themselves in a military dormitory room. Huff touched the other man's leg, tried to reach inside his shirt, and tried to undo his pants. The Air Force Court of Military Review found the evidence of this conduct sufficient to sustain the convictions for indecent acts and indecent assault. In addition, the court affirmed that Huff's informal social interactions with enlisted men had compromised his standing as an officer, but stopped short of finding that his revelation of his sexual orientation was degrading to his standing as an officer. The court also found against Huff on each of his other challenges to his discipline, finding that there was no misconduct with regard to his allegation that other soldiers had been intimidated against writing clemency letters in his support, that Huff was not entitled to speedy trial accountability, that the punishment was not so severe as to be inappropriate, and that Huff failed to make a prima facie showing of selective prosecution in violation of the equal protection clause. D.W. * * * The ACLU of Southern California reports settlement of a claim brought by Thomas A. Swann, an openly gay civilian employee of the Navy. Swann had filed charges with the EEOC, claiming discrimination on the basis of Post-Traumatic Stress Disorder caused by anti-gay harassment against him by Naval personnel. At one point, Swann had to take a "stress leave" on the advice of his doctor rather than be reassigned to a post where he had previously undergone vicious harassment. The terms of the settlement, negotiated by ACLU attorney Alan Friel, are confidential. A.S.L. * * * The New Zealand Defense Forces lifted its ban on service by openly lesbian and gay members, according to the Washington Blade (May 6). A.S.L. Courts Responding to Gay-Bashing Jefferson Co., Missouri, Circuit Judge William McAnulty imposed a 533-year sentence May 3 on Tony Jones, convicted of the murder of Jack Gilman, a 33-year old gay man who was shot in the head in a park restroom two years ago. Four high school students testified that they encountered Jones nearby a few hours before the murder, carrying a long black gun and saying he was out "hunting humans -- queers," according to the Louisville Courier-Journal. As part of his defense, Jones claimed to be bisexual, but the prosecutor's closing argument asserted that if Jones was really bisexual, his crime was likely an effort to distance himself from "that half of himself," according to the C-J story. * * * Maricopa Co., Arizona, Superior Court Judge Lawrence Anderson sentenced two defendants to prison for gay-bashing on April 29. People v. Ramirez and Enriquez. According to reports of court testimony, the defendants were looking for a "fag boy" to rob, found the complainant, Michael Anthony Senecal, in Encanto Park, where gays were known to hang out, and robbed, beat and terrorized him. Anderson rejected a plea for mercy by the defendants' lawyer, stating that those who commit hate crimes against those they consider "subhuman" are not entitled to mercy. * * * In Ohio v. Snead, 1994 WL 189389 (May 12), the Ohio Court of Appeals, Cuyahoga County, upheld the murder conviction of Darryl Snead for the shooting death of Larry Reese, a gay man who was apparently infatuated with Snead. The jury heard different accounts of what happened; one plausible account was that Snead, an ex-convict and drug user, played on Reese's infatuation to lure Reese into trusting him, then murdered Reese in Snead's apartment. Snead claimed that he shot Reese in self-defense when Reese violently attacked him -- sexually and physically -- with a gun in an attempt to get repayment of money Reese had loaned to Snead. The court of appeals, in an opinion by Chief Justice Nahra, found that the evidence was sufficient for the jury to disbelieve Snead's self-defense story, not least because Reese was shot five times at close range and a parade of character witnesses testified that Reese was a non-violent person. The court's decision does not mention specifically the sentence imposed on Snead. A.S.L. Federal Litigation Notes The 6th Circuit affirmed summary judgment against Duanne B. Kobe, a Michigan state prisoner who claimed his constitutional rights were violated when prison officials "refused to allow him to receive certain mail under a prison regulation that forbids the receipt of depictions of homosexual activity." Without any discussion, the court upheld the lower court, asserting that the regulation is "reasonably related to legitimate penological interests." One suspects that such regulations are easily subject to abuse, but this decision appears a pro forma application of similar rulings over the past few years. Kobe v. McGinnis, 1994 WL 88824 (March 17). * * * Reviving a sexual harassment and invasion of privacy case, the 10th Circuit ruled May 16 in Lankford and Calvary v. City of Hobart, 1994 WL 185003, that Nancy E. Calvary, a former dispatcher in the Hobart, Oklahoma, police department, had stated a valid cause of action for invasion of privacy against former police chief Quirino Medrano, arising from Medrano allegedly using his authority as police chief to obtain Calvary's private medical records without her consent from a local hospital in an attempt to discredit her or to prove his statements that she was a lesbian. Medrano did this after Calvary rebuffed his sexual advances and protested about his fondling, obscene gestures and requests for sexual favors. The court also reverse trial court dismissals of sexual harassment claims against the city under Title VII and against Medrano personally under 42 U.S.C. sec. 1983. * * * In an unpublished disposition, the D.C. Circuit Court of Appeals affirmed the district court's dismissal of a sexual orientation discrimination charge in Green v. Howard University, 1994 WL 118996 (March 31) -- but this is a case with a twist: LuEthel Green alleged that she was selected for discharge during a force reduction due to her heterosexuality. The district court's decision is unpublished, and the court of appeals did not explicate further. A.S.L. State Litigation Notes The Louisiana Supreme Court denied a motion for rehearing in State v. Baxley, 633 So.2d 142 (Feb. 28), on April 6. In Baxley, the court refused to address the constitutionality of Louisiana's sodomy law, holding that defendant Johnny Baxley, arrested for soliciting a plain clothes police officer, did not have standing to challenge the law. * * * The N.Y. Appellate Division, 1st Department, has rejected an argument that the New York City Human Rights Ordinance, which authorizes a private right of action and punitive damages as a remedy, is preempted by state law. Bracker v. Cohen, 1994 WL 182764 (May 10). The court held that the state's human rights law was not intended to "preempt the field of antidiscrimination law," and that providing punitive damages did not "contradict" state law, even though the Court of Appeals previously ruled that punitive damages were not available under the state human rights law, in Thoreson v. Penthouse International, 80 N.Y.2d 490. Since the city ordinance covers sexual orientation discrimination while the state law does not, this ruling buttresses the validity of New York City's 1986 gay rights law. * * * The Florida 2nd District Court of Appeal sustained a life sentence for murder in Guthrie v. State, 1994 WL 180456 (May 11), rejecting Ronald Guthrie's argument that the trial judge erred by allowing testimony that Guthrie was the gay lover of Alex Martin, the son of the murder victim, Elizabeth Martin. The prosecution's theory of the case was that Ronald and Alex plotted to murder Alex's mother in order to collect large insurance proceeds, and that Alex promised Ronald that if he murdered Elizabeth, Alex would support him for life. Prior to the trial Guthrie moved to exclude all evidence about his homosexuality, contending it would prejudice the jury against him, and relying on Florida cases holding that evidence of homosexuality was inadmissible if its sole relevance is to establish character or propensity for certain conduct. In an opinion for the court, Judge Schoonover upheld the trial court's refusal to exclude the evidence: "According to the appellant's own statement, he and Alex Martin discussed killing Ms. Martin in order that Alex would acquire insurance proceeds and the proceeds from the sale of the Jacksonville property. After Alex acquired those funds he agreed to take care of the appellant for the rest of his life. The testimony concerning the homosexual relationship of the appellant and Alex was relevant to help establish this motive and therefore was admissible. . . Furthermore, the trial court did not err in determining that the probative value of the evidence outweighed any potential prejudicial impact on the appellant's trial." * * * Albert O. Jones owned a Portland, Oregon, bar called The Eastside, which was a lesbian club featuring country-Western dance classes. He decided to change it to a nude-dancing bar for a non-gay clientele, and renamed it Dooley's Lounge. Cathlyn Abbruzzese went into the bar Jan. 6 and was refused service, claiming she was told by employees that lesbians were no longer welcome there and any women had to have a male escort to come in. She filed a $2.2 million damage suit on May 16 against Jones in Multnomah County Circuit Court, claiming unlawful discrimination on the basis of sexual orientation and gender in violation of city and state laws, according to The Oregonian. * * * An Ohio Court of Appeals panel upheld a finding that an adult bookstore that provided video booths in which customers masturbated while watching sexually explicit videos contained a "nuisance" that could be shut down, but held that the state's evidence submitted at trial was insufficient to support a finding at trial that individual employees of the store were guilty of "participating in the nuisance." In a carefully nuanced opinion in State v. Video Visions, Inc., 1994 WL 167925 (April 28), Presiding Judge Gwin found that the trial judge had avoided potential overbreadth problems by narrowly tailoring the remedy to closure of the video booths rather than closure of the entire bookstore. This undoubtedly reflected constitutional problems created by the ample evidence that the police department's nuisance investigation was sparked by political pressure from the city council to attempt to put the adult bookstore out of business. * * * While the Virginia Court of Appeals ponders her custody appeal, Sharon Bottoms is back in Henrico County Circuit Court before Judge Buford M. Parsons, Jr., asking for a contempt order against Sharon's mother, who is blocking the court-ordered visitation to which Sharon is entitled pending a final decision in her case, according to a May 22 story in the Richmond Times-Dispatch. A.S.L. Legislative Notes: Discrimination Grand Rapids, Michigan, City Commissioners voted 4-3 on May 10 to approve an ordinance forbidding discrimination on the basis of sexual orientation in housing, employment, and public accommodations. Mayor John Logie is a supported of the bill. Opponents vowed to seek a referendum to repeal the measure. * * * Responding to a survey by the American Association of Physicians for Human Rights that documented discrimination by health care providers against lesbian and gay patients, U.S. Reps. Gerry Studds (D.-Mass.) and Lynn Schenck (D.-Cal.) proposed amendments to health care legislation pending in the House Energy and Commerce Committee to add an anti-discrimination provision that includes sexual orientation, which were approved by the Committee. The President's legislative proposal lacked such protection. Some Republicans objected that this was a backdoor way of getting a federal gay rights bill. * * * The Montgomery Co., Maryland, Council voted May 24 to delete a provision from the county human rights law that permitted employers to exclude gays from positions that involved working with children. The provision, included in the 1984 non- discrimination ordinance at the instigation of Council President William E. Hanna, Jr., was the focus of a lengthy debate at a prior council meeting. Hanna was the only Democrat on the council to vote against repeal. The Republicans abstained. A.S.L. Federal Court Dismisses Suit Against California Bar by Gay Rights Attorney U.S. District Judge Caulfield (N.D.Cal.) dismissed a suit brought by prominent gay rights attorney Richard Gayer against the State Bar of California, in Gayer v. State Bar of California, 1994 WL 163920 (April 14). Gayer had asserted a violation of his constitutional rights by an investigation of his conduct undertaken by the State Bar. The invesigation was sparked by some letters to the editor by Gayer published in legal newspapers in San Francisco as well as the San Francisco Sentinel, in which Gayer asserted that several San Francisco trial judges "think disputes between gay citizens are not worthy of the courts' time" and asserted that failure of the judges to show concern for his plight at being sued by "the disgruntled rommate of an AIDS vicitm who did not receive what he had expected under his deceased roommate's will" had so angered Gayer that only his "respect for the law and my rejection of violence" kept him from "loading my shotfun and pumping eight rounds each into the bodies" of the named judges. Upon receiving a copy of the letter in the mail, State Bar officials commenced an investigation of Gayer's conduct. Gayer charged that this violated his First Amendment rights of free speech, and that a general practice of the State Bar of focusing disciplinary proceedings on solo and small firm practitioners violated due process and equal protection requirements as well. Caulfield found no merit to the First Amendment claim, citing the 9th Circuit's decision in Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991), in which the court found no 1st Amendment violation when the Navy discharged a lesbian service member after she participated in an interview with a newspaper about her sexuality. However, although dismissing his due process and equal protection claims as inadequately pleaded, Caulfield held such dismissal as without prejudice with regard to the two individually named defendants, the president and an investigator for the State Bar, opining that Gayer might file an amended complaint more specifically pleading his due process and equal protection points and seeking only injunctive relief. However, Caulfield noted that the State Bar had ceased its investigation and never taken any disciplinary action against Gayer, thus probably mooting the case, and Caulfield speculated that Gayer's suit was filed as a strategy to get the State Bar to abandon its investigation. Along this line, "and to further the purposes of Rule 11," Caulfield instructed that any amended complaint had to specifically address a variety of factual gaps in the original complaint, including "personal knowledge of facts to support his claims that the State Bar's policy and practice is to focus its investigations disproportionately on solo practitioners, that the investigation of plaintiff was due to his representation of `gay-related judicial efforts,' and that he was investigated for an improper reason." A.S.L. Law & Society Notes The nomination of 1st Circuit Court of Appeals Chief Judge Stephen Breyer to the Supreme Court by President Clinton on May 13 to succeed Justice Harry Blackmun does not bring a nominee with a lengthy record on gay issues. Review of his 1st Circuit cases shows only one involving a substantive gay rights issue: In Mathews v. Marsh, 755 F.2d 182 (1985), Breyer dissented from a decision to vacate a trial judge's order that a lesbian be reinstated to military reserve service. Diane Mathews was dismissed when she told her commander she was a lesbian. The trial judge found the dismissal, based solely on her statement, was a violation of the 1st Amendment. A majority of the 1st Circuit found that subsequent statements she made admitting having engaged in homosexual conduct required them to vacate and remand the case. Breyer dissented, indicating he would have decided the case on the merits, but without intimating his views as to the merits. The only other cases in which gay litigants were involved concerned procedural or habeas corpus issues that did not provide any indication of Breyer's substantive views. * * * Prodded by Rep. Barney Frank (D.- Mass.) for a clearer statement of department policy, U.S. Secretary of State Warren Christopher issued a non-discrimination statement on April 22 that includes disability and sexual orientation. Anti- gay discrimination in the diplomatic corps has been a longstanding issue with gay rights advocates. * * * Psychology Professor Ilda Ficher of Widener University announced a study that concludes that "children raised by lesbian couples are just as psychologically healthy as children of heterosexual couples," according to the Philadelphia Inquirer (May 3). Ficher compared 15 lesbian and 15 heterosexual families, demographically matched, performing detailed evaluations of the parents and children. The study showed a slight advantage on parenting skills for lesbian couples, attributable to a gender difference with respect to such skills. * * * Los Angeles Police Chief Willie L. Williams proposed new procedures to address problems of sexual harassment and sexual orientation discrimination, including establishment of a special internal enforcement unit. Williams is advocating special training to sensitize police officers. According to the Los Angeles Times, he said, "We must also ensure that all the current and future members of the department receive training to ensure that they fully understand the policies and procedures relating to discriminatory behavior in the areas of ethnicity, gender and sexual orientation." * * * Speaking on Court TV, the new head of the U.S. Justice Department's Civil Rights Division, Deval Patrick, called for adding "sexual orientation" to federal hate crimes legislation. * * * Another first in the sexual revolution: San Francisco Police Chief Anthony Ribera announced that Officer Stefan Thorne will continue as a uniformed cop after undergoing sex reassignment surgery and a name change to Stephanie Thorne, thus becoming perhaps the first openly post-operative transsexual uniformed police officer in the nation. Ribera made the announcement, with Thorne's permission, to stifle rumors and gossip that had been sweeping the department, according to news reports. On another front, preoperative transsexual Dennis Smith, a Florida state prison inmate, sued officials at the Martin Correctional Institution on May 18, charging that they had improperly denied him estrogen treatments needed to "maintain his female physique," according to a May 20 story in the Houston Post. Smith had been encarcerated on battery charges in 1990, and was allowed to maintain estrogen treatments during that imprisonment. He was rearrested in 1992 for violation of probation and sent to an all- male prison, where the treatments were denied, prison officials asserting that Smith had not legally changed his name and they considered him male. * * * The American Psychiatric Association, at its annual meeting in Philadelphia on May 21, put off voting on a resolution that would have disapproved of attempts by psychiatrists to attempt to change their patients' sexual orientation. Responding to opposition from psychiatrists who persist in offering "treatment" to those dissatisfied with their homosexual orientation, the resolution was referred back to committee for "sharpening," according to Association spokesman John Blamphin, who was quoted by Reuters as follows: "One thing is clear -- that any kind of therapy can't change one's sexual orientation, but it can change one's behavior." * * * The Gay & Lesbian Alliance Against Defamation is threatening a boycott of Coca Cola products during the Stonewall 25 celebration in New York, in response to Coke's unwillingness to get involved in a controversy in Atlanta (where Coke is headquartered) over the planned location of some Olympic events in Cobb County, whose commissioners adopted an anti-gay policy resolution last year. * * * A student judicial board at the University of Wisconsin-Whitewater, found that the student senate violated non-discrimination requirements in the way it dealt with the gay student association's annual budget request. The board ordered that all senators must attend workshops on gay, lesbian and bisexual issues, cultural sensitivity, and proper meeting decorum, and called for mandatory leadership training for all senators, reported the Wisconsin State Journal (May 25). * * * Better late than never: The Associated Press reported that Outrage, a gay activist group in London, wrote to Queen Elizabeth II seeking a posthumous royal pardon for Oscar Wilde, the 19th century Irish playwright and wit. * * * Following up on a recent U.N. Human Rights Committee ruling that the anti-sodomy law in Tasmania, Australia, violates the International Covenant of Civil and Political Rights, several gay activists have turned themselves in to police for committing sodomy, in hopes of sparking a Tasmanian court decision striking down the law, inasmuch as the state has made no move to repeal it, according to the Washington Blade (May 20). Our Australian correspondent, David Buchanan, notes that Australia has a "relatively adventurous" High Court bench, so the outcome of litigation should be interesting. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS New York, Louisiana Courts Consider AIDS-Phobia Claims Ruling on a motion to dismiss and cross-motion for summary judgment, N.Y. State Supreme Court Justice Charles E. Ramos (N.Y. County) ruled May 9 in Mason v. Calhoun, NYLJ, 5/17, p.22, that a trial would be necessary to determine the validity of Paul Mason's AIDS-phobia claim against the estate of his deceased lover, Lawrence Jacobs. Jacobs' executrix had asserted that Mason's claim was unprecedented under New York law, as well as being time-barred. According to the complaint, Mason, who had recently tested negative for HIV prior to surgery, met Jacobs in a bar early in June 1988, at which time the two men discussed their HIV status, both stating they had tested negative. At the time Jacobs was living with Herbert Green, who had AIDS, and, as Jacobs confessed to Mason in December of 1988, Jacobs had not been tested at the time he met Mason. Jacobs and Mason commenced a sexual relationship a few weeks later which included unprotected anal sex. In August, Mason moved in with Jacobs at a time when Green was supposedly away at their house in Pennsylvania. In September 1988 Jacobs tested HIV+ and told Mason; henceforth, the men had only protected sex. Mason claims that Jacobs confessed in December 1988 that "all of his previous assurances that he had tested negative for HIV in the past were false." Mason ended his sexual relationship with Jacobs, and subsequently terminated their relationship entirely. Green subsequently died from AIDS-related lymphona in January 1991, and Jacobs died in March 1991. Mason claims that he had been perfectly well prior to Jacobs' confession, but had suffered severe emotional consequences afterwards. "As a result of this ordeal," wrote Ramos, "plaintiff cannot hold down a job, feels depressed, anxious, and physically ill. Although his HIV tests have all returned negative he has become symptomatic of an individual with HIV, including a drop in weight from 185 lbs to 162 lbs, a T-cell count of 586 and other medical difficulties." Mason sued Jacobs' estate for fraud, breach of fiduciary duty, and intentional infliction of emotional distress. The estate moved to dismiss, denying Mason's allegations and asserting that Mason knew or should have known of the risk of HIV infection and thus assumed the risk. The estate also raised a statute of limitations claim. In a thorough opinion, Ramos disposed of most of the estate's arguments, but concluded that factual issues prevented an award of summary judgment to Mason. Ramos carefully distinguished between AIDS-hysteria, which he described as a claim involving "irrational fear of contact with individuals who potentially may be HIV positive," and AIDS-phobia, which he described as a claim involving "actual exposure to the disease, usually involving sexual contact." In this case, Mason claimed to have tape recordings of telephone conversations with Jacobs in which Jacobs admitted to having lied about his knowledge of his HIV status at the time the men were engaging in unprotected intercourse, thus creating a live factual issue for trial on the question of fraud. More significantly, Ramos found that any assumption of risk defense would have to be proved at trial, and since New York is a comparative fault jurisdiction, even if a jury found some negligence on the part of Mason, that would not necessarily preclude finding liability on the part of Jacobs. Ramos found that the cases relied upon by the defense were all distinguishable as falling more properly in the AIDS-hysteria than AIDS-phobia classification. And, on the issue of statute of limitations, Ramos found that a six-year statute for fraud might apply to the case, thus knocking out the defense which, in any event, turned on disputed factual issues that would require trial. The defense also argued that since he had not yet seroconverted, Mason had suffered no injury and might never develop AIDS, submitted an affidavit from a doctor in support of this claim. Ramos rejected this argument as well, noting Mason's alleged symptoms and holding that he could not rule as a matter of law that an HIV-seronegative plaintiff could not bring an action for AIDS-phobia, certainly not on the basis of an affidavit from a doctor who had not examined the plaintiff and had not been subjected to cross-examination at trial. One hopes that Ramos' thorough decision will achieve official publication. Mason is represented in the litigation by the firm of LeGaL board member Lori Cohen. A.S.L. A hospital patient who was mistakenly given someone else's blood could sue for mental anguish over fear of contracting AIDS, even though she was not infected, a Louisiana appeals court ruled. The court in Bordelon v. St. Frances Cabrini Hospital, 1994 WL 164668 (3d Cir., May 4), applied relatively expansive reasoning in allowing an "AIDS-phobia" suit. The plaintiff had donated blood to be used in her hysterectomy surgery if needed, but during the operation she was given someone else's blood instead. The trial court dismissed her claim for mental anguish, but the Court of Appeal reversed and remanded for trial. The appellate court found the hospital breached a duty of care by failing to give the patient her own blood, and determined that her "genuine and reasonable fear of contracting AIDS" was a foreseeable consequence of the breach. In medical claims, wrote Judge Woodard, the burden of foreseeable losses should be placed on defendants rather than "innocent victims," adding that since AIDS is incurable, the need for extraordinary efforts to prevent it was "obviously a policy consideration." K.R. (Note: Under N.Y. Judge Ramos's typology, Bordelon's case seems more of an "AIDS-hysteria" case than an "AIDS-phobia" case, since there is no indication that Ms. Bordelon was actually exposed to HIV-infected blood. A.S.L.) HIV Transmission Litigation Developments An Associated Press story widely published on May 15 reported that documents placed under protective orders in a variety of HIV transfusion cases showed that various blood banking officials actually believed that AIDS could be transmitted through blood transfusions early in 1983, even as the industry was denying that a solid enough link had been established to justify using a surrogate test for hepatitis B in order to screen donated blood. At that time the virus implicated in AIDS had not yet been discovered, but epidemiologists had already noted cases of AIDS among hemophiliacs and former surgical patients. According to one memo from early 1983, Paul Cumming, a Red Cross planning and marketing manager, wrote: "Availale evidence strongly suggests that AIDS is transmissible" through blood. Contacted by A.P. for this story, Cumming denied that any mistakes were make, stating that "there was no scientific evidence" and that the hepatitis test would have been bad for this purpose because it would produce numerous false positive results. * * * N.Y. State Supreme Court Justice Angela Mazzarelli (N.Y. County) ruled in Chambarry v. Mt. Sinai Hospital, NYLJ, May 24, p. 21, that the estates of a husband and wife who died from AIDS could maintain a cause of action for wrongful death, even though the source of HIV infection was alleged to be a transfusion received by the husband in a 1981 heart operation and subsequently transmitted to the wife sexually in 1985 or later. Although the complaint originally filed by the husband in 1991 prior to his death (the wife had recently died) focused on the alleged transmission to him, amended complaints filed by the estates of the couple focused instead on Mt. Sinai's failure to identify Mr. Anast in a "look-back" program the hospital instituted in 1986 to identify previous transfusion recipients who might have been infected. The first the Anasts learned of their HIV infection came in 1989. The plaintiff-estates claim that had Mr. Anast been notified promptly after the HIV antibody test was made available to hospitals in 1985, at a time when he had not yet resumed sexual relations with Mrs. Anast, she might not have been infected; in additionally, plaintiffs allege that the delay in notification deprived the Anasts of the possibility of obtaining treatments that could have extended their lives. The hospital moved to dismiss on a variety of grounds, including statute of limitations and direct challenges to the plaintiffs' legal theories. Justice Mazzarelli found the case covered by a 3-year negligence statute of limitations that began running in 1989 when the Anasts learned of their infection, making both the original and amended complaints timely. She also found that the amended complaint stated valid negligence claims that raised contested factual issues requiring trial. The recognition of a cause of action for a negligently operated look-back program raises the possibility of at least some liability for HIV transmission dating prior to the 1984 identification of HIV, or even the 1983 admissions by blood bankers that a blood-borne pathogen might be implicated in AIDS. * * * Connecticut Superior Court Judge Lewis ruled April 12 in Wills v. Stamford Hospital, 1994 WL 146406, that an HIV transfusion case should be dismissed on summary judgment due to the plaintiff's failure to offer expert testimony in support of her allegations. Although the complaint stated both negligence and breach of contract claims, the court found that it was essentially a malpractice case, and that expert testimony is necessary on the issue of whether the appropriate standard of care was used by the defendant in providing health care to the plaintiff. * * * Round 3 for the Colemans: When we last saw them, in Coleman v. American Red Cross, 145 F.R.D. 422 (E.D.Mich. 1993), Cheryl and Gerry Coleman had been thrown out of court by a federal trial judge because their attorney disobeyed a discovery order and attempted to file suit against a HIV+ blood donor whose identity had been secured through a slip-up by the Red Cross in responding to a discovery request. Now the 6th Circuit has decided, by 2-1 vote, that the Colemans should not be punished because of the misdeeds of their lawyer, and has reinstated their suit against the Red Cross in connection with a 1984 transfusion from which Mrs. Coleman allegedly became HIV- infected. Dissenting, Judge Ryan points out that in this kind of case, where the plaintiff's lawyer is working on contingency, the client and lawyers are partners in the enterprise, thus justifying dismissing the case for the lawyer's misdeeds. See 1994 WL 185927 (May 16). * * * The Court of Appeals of Oregon holds in Doe v. American Red Cross, 1994 WL 182754 (May 11) that the statute of limitations on an HIV-transmission claim stemming from a 1985 transfusion began to run not in 1987 when the patient was informed that he was HIV+, but rather in 1990 when he was diagnosed with AIDS. The trial court dismissed the suit (filed in 1991) on limitations grounds, finding that the cause of action accrued when plaintiff was first notified of his infection. Reversing, the court of appeals accepted the plaintiff's argument that he should not be held to have known he had suffered an actionable harm in 1987 because (quoting a 1991 Pennsylvania case) "Although it is known presently that HIV infection . . . ultimately causes the death of many persons so infected, this was not the state of knowledge during 1984 through 1988. Instead, during this time period, over ninety percent of infected persons were thought to be immune to the virus." The alert reader asks: Thought by whom to be immune? This revisionist history is great for plaintiffs' lawyers (and the executors of plaintiffs who are the ones most likely to realize damages in HIV transmission cases), but what is its social utility? * * * In Doe v. Cutter Biological, 1994 WL 184830 (May 12), the U.S. District Court for Idaho dismissed a suit by a hemophiliac who was unable to specify which manufacturer of Factor VIII was specifically responsible for his HIV infection. The court had certified to the Idaho Supreme Court the question whether Idaho would follow those states that allow a consumer to sue several manufacturers in an industry and collect damages by showing an inadequate standard of care in the industry. The Idaho Supreme Court refused to answer the certified question, "much to this court's dismay," commented District Judge Ryan. Undertaking an independent analysis of Idaho law, the court concluded that none of the joint liability theories argued by the plaintiff would be upheld by the Idaho courts, and dismissed the case. Neither the Idaho legislature nor the highest court of this state has declared that, without proof of causation, a plaintiff, such as John Doe, should be able to recover against providers of Factor VIII concentrates, such as Miles and Armour. . . With the advent of tort reform and the Idaho legislature's virtual abolition of joint and several liability, this court is hard pressed to conclude that the public policy of Idaho supports an expansion of Idaho's traditional tort law. . . From the Order Declining to Accept Certification, this court infers that the highest court of Idaho either found that Idaho's tort law cannot or should not be expanded given the abolition of joint and several liability under Idaho Code sec. 6- 803 and/or the express language of Idaho's blood shield statute under Idaho Code sec. 39-3702." A.S.L. Federal Litigation Notes In Tyler v. City of Manhattan, 1994 WL 150703 (D.Kan., April 20), a public services cases brought under the Americans With Disabilities Act, U.S. District Judge Keith Saffels ruled on a question of first impression that ADA does not afford a jury trial in a public services cases. (The specific charge was that the city had not made its various services, activities and programs accessible to persons with disabilities.) Saffels also ruled that compensatory damages for anguish, emotional distress and humiliation are not available in an ADA public services case, distinguishing a recent district court decision in the same circuit that had awarded such damages in a S 504 employment case involve an HIV+ municipal employee, Tanberg v. Weld County Sheriff, 787 F.Supp. 970 (D. Colo. 1992). Saffels found intentional employment discrimination to be sufficiently distinguishable from a city's failure to implement accessibility policies for the benefit of the public to warrant a difference in approach in the remedial stage, opining that injunctive relief was the most suitable remedy in such a case. * * * U.S. District Judge Bartle has ordered the news divisions of ABC, NBC and CBS to make available for in camera viewing outtakes of interviews conducted with the plaintiff in Doe v. Kahn, Nast & Graf, P.C., 1994 WL 193867 (E.D.Pa., May 19). Plaintiff, a gay HIV+ lawyer, alleges he was fired by his Philadelphia law firm employer in December 1992 because of his HIV status. News reports about his lawsuit came out shortly before the release of the movie Philadelphia, capturing media interest and leading to interviews with him by the three major TV networks. The defendant lawfirm sought discovery of outtakes (unused portions) of those interviews, claiming that contradictions between statements in the interviews and statements at plaintiff's deposition would be admissible as admissions against interest and might be useful to impeach plaintiff's testimony at trial. The networks resisted disclosure on grounds of 1st Amendment privilege. Judge Bartle found that statements on the outtakes were "unique," thus otherwise unavailable, and potentially relevant, but would not go so far as to order disclosure to the defendants; rather Bartle ordered submission of the outtakes to the court for viewing, so that the court could determine whether anything plaintiff said on the outtakes fully met the tests for compelled disclosure of material in the possession of a non-party. * * * An attorney charging a small law firm (10 employees) that he was unlawfully discharged because he has AIDS brought suit in U.S. District Court in Philadelphia under the Americans With Disabilities Act, which until late July, 1994, applies only to employers of 25 or more persons. The defendant Shapiro Law Firm moved to dismiss on jurisdictional grounds, but U.S. District Judge Robert S. Gawthrop ruled April 26 in Doe v. Shapiro, No. 94-0925, that the small firm was tantamount to being the legal department of Walnut Equipment Leasing Companies and Equipment Leasing Corp. of America, large operations, so that ADA jurisdiction should be asserted. The John Doe plaintiff had named the leasing companies as co-defendants, and Gawthorp found that from 90 to 99 percent of the cases handled by the Shapiro firm involved these related leasing companies. Here is piercing the corporate veil with a vengeance! See BNA Daily Labor Report No. 86, 5/6/94, at A-1. A.S.L. State Litigation Notes The Ohio Court of Appeals, Cuyahoga Co., affirmed a decision dismissing a wrongful discharge claim by a store guard who suffered a bite from a shoplifting suspect. Radikovich v. The Higbee Co., 1994 WL 189409 (Ohio App., 8th Dist., May 12). The guard asked the employer to obtain HIV testing of the suspect, and was subsequently discharged for insubordination when he refused to perform requested tasks until the company did something about his request. The court of appeals agreed with the trial court that the guard was an at- will employee, and that his discharge under the circumstances did not violate any public policy of Ohio. A.S.L. * * * The Minnesota Court of Appeals, in Taylor v. Hennepin County, 1994 WL 175010 (May 10), upheld an administrativ determination that a prisoner's claim for discrimination in the provision of public services on the basis of a disability (AIDS) abated when the plaintiff subsequently died. Plaintiff Steven Taylor, a prisoner in the Hennepin Co. Adult Correctional Facility, disclosed his HIV+ status to prison authorities. The facility -- pursuant to its procedures for handling inmates with bloodborne diseases -- imposed certain requirements regarding his personal hygiene, his interaction with other inmates, and his special responsibility to clean his cell walls. He sought damages in the Department of Human Rights for pain and suffering, an injunction, costs and attorneys' fees under Minn. Stat. sec. 363.03(4)(1). The ALJ dismissed Taylor's claim on the ground that the cause of action abated upon Taylor's death. On appeal, his estate argued that the Act provides for survival of a cause of action by defining a "person" who may bring a civil action as, inter alia, a "legal representative." The appellate court held that Taylor's reliance on such textual language was a "slender reed," and that the term "legal representative" was intended by the legislature to allow suits on behalf of those who cannot bring suits themselves. More generally, under Minnesota's general survival provision in sec. 573-01-02, a cause of action for injury to the person dies with the person in whose favor it exists. The court determined that Taylor's civil rights claim arose out of "injury to the person," and thus did not survive his death, affirming the ALJ's decision to dismiss the claim. B.M. * * * In Doe v. Marselle, 1994 WL 185662 (April 29), the Connecticut Superior Court adopted a strict construction of that state's HIV confidentiality law, which authorizes a private right of action for damages against anybody who makes a "wilful disclosure" of another person's HIV status. One of the defendants is a doctor, who apparently authorized a co-defendant to inform certain other individuals who were friends of the plaintiff that they may have been exposed to HIV. The doctor told this co-defendant not to use the plaintiff's name in spreading such information. The plaintiff alleged that the co-defendant subsequently spread the information about the plaintiff further, to other of her acquaintances. In dismissing the portion of the complaint aimed at the doctor, the court found that his failure to inform the co-defendant of the statutory prohibition was "at worst, some type of negligence -- but certainly not wilful behavior." A.S.L. * * * Alameda County (California) Superior Court Judge Marie Bertillion Collins awarded $729,000 in damages to Frank Perrault, who was discharged by Educational Testing Service, Inc., after informed his supervisor he was HIV+. The award included $428,770 in economic, $250,000 in noneconomic, and $50,000 in emotional damages. Collins found that Perrault had suffered disability discrimination, race discrimination (he is African-American), and negligent infliction of emotional distress. See BNA Daily Labor Report No. 88, 5/10/94, at A-5. A.S.L. * * * The Missouri Court of Appeals has quashed a rule adopted by the judges of the 19th Judicial Circuit in that state, under which no prisoner would be allowed in the courthouse unless the Corrections Department first advised the court of any infectious condition (including HIV infection) of the prisoner. In State v. Kinder, 1994 WL 199820 (Mo. Ct. App., W.D., May 24), the Corrections Director challenged the validity of the court rule in light of state confidentiality laws pertaining to HIV infection. In an opinion by Presiding Judge Lowenstein, the court agreed with the Director that none of the reasons articulated by the circuit judges for their rule overcame the confidentiality requirements of state law or constitutional privacy rights. "The government here is a circuit court, which does not house or treat inmates, and its employees and spectators will have only casual contact with prisoners, and it has not shown a compelling interest; therefore, the reason for the Rule cannot be upheld. The activities which cause transmittal of the HIV virus [sic] should not occur in court; and adequate safeguards can be universally used as to all litigants in court." Thus, the trial court's mandate ordering the Director to divulge HIV information about prisoners was "improvidently granted," wrote Lowenstein, being a violation of state confidentiality law and privacy rights under both the federal and state constitutions. A.S.L. * * * A San Mateo (California) County Superior Court jury found that Delta Airlines violated employee Joseph Sullivan's privacy by compiling a list of HIV+ employees that was shared with various management officials and that included Sullivan's name. The jury also found a violation of state law requiring reasonable accommodation for employees seeking treatment for substance abuse. But the jury deadlocked on Sullivan's charge that he was fired because of his HIV status, and failed to agree on punitive damages. The jury settled on a $275,000 damage award. See BNA Daily Labor Report No. 89, 5/11/94, at A-9. A.S.L. Study Shows AIDS Costs for Employers Lower Than Expected A study conducted by Blue Cross/Blue Shield of Rochester, N.Y., and Blue Cross/Blue Shield of Chicago found that employers spend a maximum of $32,000 over five years for an HIV-infected employee, far less than the $100,000+ lifetime figures frequently bandied about. See BNA Daily Labor Report No. 85, 5/5/94, p. A-8. The study finds that costs escalate for end-stage AIDS, but that for HIV-infected employees the median time from infection to diagnosed AIDS is ten years, thus delaying the major expenses associated with the illness. The study is published in the Spring 1994 issue of Inquiry, a magazine published by Blue Cross/Blue Shield. For information about the study, call 716-264-9122. * * * For an interesting commentary on the use of mistakenly large cost figures to make AIDS policy decisions, see the article by Green, Oppenheimer and Wintfeld cited below. A.S.L. Dispute Erupts Over AIDS Funding for Catholic Charities The City of San Francisco requires contractors for AIDS services to certify that "the sexual orientation of [the] contractor's staff and board of directors [is] representative of the target population being served." Catholic Charities, a major AIDS service contractor, has refused to reveal the sexual orientation of staff and board members. While maintaining that they undoubtedly have gay people on staff and on the board, CC refuses to inquire into sexual orientation. "We are very sensitive to people's right to privacy," proclaimed chief executive Frank Hudson, but San Francisco Public Health Commission has put off approving some new contracts until CC agrees to comply. Ultimately, $1.5 million in contracts may be at risk, according to the San Francisco Chronicle of May 20. A.S.L. ANNOUNCEMENTS & PUBLICATIONS NOTED ANNOUNCEMENTS The National Center for Lesbian Rights is looking for a new Legal Director, to oversee NCLR's litigation, community and judicial education and other activities. The position is based in San Francisco and requires 30-60 days of travel per year. Applicants should be admitted to law practice with a minimum of 5 years legal experience (which may include law teaching experience), excellent writing skills, experience working in a multicultural environment and supervising staff. Familiarity with civil rights and women's rights issues as well as gay/lesbian legal issues is required. Salary depends on experience; full benefits package. Send resumes and writing samples, together with a cover letter, to: Liz Hendrickson, Executive Director, NCLR, 870 Market Street, Suite 570, San Francisco, CA 94102. Interviewing will begin in July. NCLR is an equal opportunity employer. LESBIAN & GAY & RELATED LEGAL ISSUES: Baird, Bill, The Politics of God, Government, and Sex: A Thirty- One-Year Crusade, 13 St. Louis U. Pub. L. Rev. 139 (1993) (colorful autobiographical statement by pioneering leader in sex law reform). Berger, Raoul, Suzanna and -- the Ninth Amendment, 1994 Brigham Young U. L. Rev. 51. Brant, Joanne C., "Our Shield Belongs to the Lord": Religious Employers and A Constitutional Right to Discriminate, 21 Hastings Const. L.Q. 275 (Winter 1994). Brill, Howard W., Sex and the Client: Ten Reasons to Say "No!", 33 Santa Clara L. Rev. 651 (1993). Burrington, Debra D., Constructing the Outlaw, Outing the Law, and Throwing Out the Law, 1994 Utah L. Rev. Calhoun, Cheshire, Separating Lesbian Theory from Feminist Theory, 104 Ethics 558 (April 1994). Dammich, Edward J., and Terence K. Wolfe, Out a Second Time: Gay Heterodoxy on the Question of Abortion, 13 St. Louis U. Pub. L. Rev. 253 (1993) (argument that gays should oppose abortion). Danielsen, Dan, Law and Violence, 1994 Utah L. Rev. 247. Dunlap, Aklilu, The Bellows of Dying Elephants: Gay-, Lesbian-, and Bisexual-Protective Hate Crime Statutes after R.A.V. v. City of St. Paul, 12 L. & Inequality 205 (Dec. 1993). Fleisher, Marc, Down the Passage Which We Should Not Take: The Folly of Hate Crime Legislation, 2 J. L. & Policy 1 (1994). Friedman, Lawrence, Regulating Hate Speech at Public Universities After R.A.V. v. City of St. Paul, 37 Howard L.J. 1 (Fall 1993). Helms, Jesse, Is It Art or Tax-Paid Obscenity? The NEA Controversy, 2 J. L. & Policy 99 (1994) (Jesse asks the question, you know the answer!). Huber, Arlene Browand, Children at Risk in the Politics of Child Custody Suits: Acknowledging Their Needs for Nurture, 32 U. Louisville J. Fam. L. 33 (1993-94). Kmiec, Douglas W., America's `Cultural War' - The Sinister Denial of Virtue and the Decline of Natural Law, 13 St. Louis U. Pub. L. Rev. 183 (1993) (Meet the Devil - Reaganaut summons the force of "natural law" to argue against gay rights, among other things). Kogan, Terry S., Legislative Violence Against Lesbians and Gay Men, 1994 Utah L. Rev. 209. Martinez, Theresa A., Embracing the Outlaws: Deviance at the Intersection of Race, Class, and Gender, 1994 Utah L. Rev. 193. McClain, Linda C., Rights and Irresponsibility, 43 Duke L.J. 989 (March 1994). Roberts, Dorothy E., Deviance, Resistance, and Love, 1994 Utah L. Rev. 179. Schlamm, Peter R., and Harvey M. Stone, Eastern District Roundup: Challenge to the Policy on Gays in Military, N.Y.L.J., May 13, 1994, at 3. Spiropoulos, Andrew C., Natural Right and the Constitution: Principle as Purpose and Limit, 13 St. Louis U. Pub. L. Rev. 285 (1993). Work, Clemens P., Whose Privacy?, 55 Montana L. Rev. 209 (Winter 1994) (regarding newspaper publication of "private" matters). Student Notes & Comments: Fenton, Alison T., Constitutional Law - First Amendment - Overbreadth Doctrine - Hate Crimes - Penalty Enhancement. . . [note on Wisconsin v. Mitchell], 32 Duquesne L. Rev. 939 (Summer 1994). Gaede, Donovan W., Constitutional Law - Policing the Obscene: Modern Obscenity Doctrine Re-Evaluated, 18 S. Ill. U. L. J. 439 (Winter 1994). Gaede, Donovan W., Constitutional Law - Why the Supreme Court Hates Hate-Crime Ordinances. R.A.V. v. St. Paul, 18 S. Ill. U. L. J. 481 (Winter 1994). Henry, Vickie L., A Tale of Three Women: A Survey of the Rights and Responsibilities of Unmarried Women Who Conceive by Alternative Insemination and a Model for Legislative Reform, 19 Am. J. L. & Med. 285 (1993). Hohengarten, William M., Same-Sex Marriage and the Right of Privacy, 103 Yale L.J. 1495 (April 1994). Idleman, Scott C., The Role of Religious Values in Judicial Decision Making, 68 Ind. L.J. 433 (Spring 1993). Mueller, Robert C., Donahue v. Fair Employment and Housing Commission: A Free Exercise Defense to Marital Status Discrimination?, 74 Boston U. L. Rev. 145 (Jan. 1994). Namazi, Nooshin, and James H. Cahill, University Hate Speech Codes: A Necessary Method in the Process of Eradicating the Universal Wrong of Racism, 10 Touro L. Rev. 561 (Winter 1994). Serratelli, Arthur, Surrogate Motherhood Contracts: Should the British or Canadian Model Fill the U.S. Legislative Vacuum?, 26 George Wash. J. Int'l L. & Econ. 633 (1993). Book Reviews: Sears, Brad, Review of Lesbians, Gay Men, and the Law by William B. Rubenstein, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 257 (Winter 1994). Specially Noted: In Created Equal: Why Gay Rights Matter to America (St. Martin's Press, 1994), novelist Michael Nava and historian Robert Dawidoff set themselves much the same task as did philosopher Richard Mohr in A More Perfect Union (Beacon Press, 1994), published a few months ago: to persuade non-gay Americans that it is in their interest to support equal rights for lesbians and gay men. It strikes this reader that neither of these books is likely to be read by many non-gay people, but both may contribute to helping gay people figure out where we stand on a variety of important questions. The Mohr book is compact, a quick, tightly-argued essay; Nava and Dawidoff are much wordier and occasionally repetitious. Both books are worth reading. Symposia: The Role of Religion in Public Debate in a Liberal Society, 30 San Diego L. Rev. No. 4 (Nov-Dec 1993) (although homosexuality is only briefly mentioned in passing, the subject matter of this symposium is crucial to gay rights argumentation). AIDS & RELATED LEGAL ISSUES: Anderson, Barbara Matthews, "First Do No Harm. . .": Can Restrictions on HIV-Infected Health Care Workers Be Justified?, 33 Santa Clara L. Rev. 603 (1993). Bacon, David L., ERISA Preemption and Health Care, 23 The Brief No. 3, 16 (Spring 1994). Benesch, Katherine, AIDS and the ADA in the Health Care Workplace, 23 The Brief No. 3, 22 (Spring 1994). Bobinski, Mary Anne, Autonomy and Privacy: Protecting Patients from Their Physicians, 55 U. Pitt. L. Rev. 291 (Winter 1994). Bruyere, Michael P., Damage Control for Victims of Physical Assault - Testing the Innocent for AIDS, 21 Fla. St. U. L. Rev. 945 (Winter 1994). Green, Jesse, Gerald M. Oppenheimer, and Neil Wintfeld, The $147,000 Misunderstanding: Repercussions of Overestimating the Cost of AIDS, 19 J. Health Politics, Policy & L. 69 (Spring 1994) (fascinating demonstration of erroneous early high estimate of AIDS treatment costs, and resulting distortions of public policy). Mann, Jonathan, Daniel Tarantola, Jeff O'Malley, and the Global AIDS Policy Coalition, Toward a New Health Care Strategy to Control the HIV/AIDS Pandemic, 22 J. L., Med. & Ethics 41 (Spring 1994). Ponte, Lucille M., AIDS Anxiety in the Workplace: A Review of Labor Arbitration Awards, 23 Southwestern U. L. Rev. 253 (1994). Stewart, Tracy M., and N. Dickon Reppucci, AIDS and Murder: Decisions Regarding the Maintenance of Confidentiality Versus the Duty to Protect, 18 L. & Hum. Behavior 107 (April 1994). Student Notes & Comments: Brinkley, P. Dean, Health Care Worker's Legal Duty to Disclose HIV- Positive Status to Patients Before Performing Invasive Procedures, 29 Tulsa L.J. 429 (Winter 1993). Gabel, Jody B., Liability for `Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 Fla. St. U. L. Rev. 981 (Winter 1994). Korsten, Lisa M., The Global Market for Blood: A Proposal for Expansion and a Consistent System of International Regulation, 11 Boston U. Int'l. L.J. 227 (Spring 1993). Prosecutor's Improper Questioning of Witness Regarding HIV Status Does Not Deny Defendant Right to Fair Trial, 27 Suff. U. L. Rev. 474 (1993) (R.I. Law Survey). Book Reviews: Eskridge, William N., Jr., and Brian D. Weimer, The Economics Epidemic in an AIDS Perspective: Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective by Thomas J. Philipson & Richard A. Posner, 61 U. Chi. L. Rev. 733 (Spring 1994) (takes apart Philipson & Posner's economic analysis of AIDS policy choices). Editor's Note: Law Notes now goes on its summer schedule. A combined July/August issue will be published in mid-July, and regular monthly publication will resume with the September issue. * * * All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.