LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 October 1995 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com Contributing Writers: Otis Damslet, Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan, Esq., New York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle; Mark N. Sperber, J.D., New York; Eva G. Anthony, David Pumo, Students, Brooklyn Law School; Helen G. Ullrich, Student, New York Law School. Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118. (C) 1995 by Lesbian & Gay Law Association of Greater New York $30/yr by subscription (Foreign Rate US$35) Ohio Appeals Court Upholds Dismissal Of Gay Attorney But Revives Privacy Tort Claim In Greenwood v. Taft, Stettinius, & Hollister, 1995 WL 540221 (Sept. 13), the Ohio Court of Appeals upheld the dismissal of plaintiff's wrongful discharge claim, ruling that under Ohio law at present there is no remedy to prevent discharge on the basis of sexual orientation or for engaging in political activity related to gay rights. The court reversed the dismissal of Greenwood's invasion of privacy claim against his employer. Scott Greenwood, who worked as an attorney at defendant's law firm, alleged that the firm discharged him because he is gay and/or because of his activities supporting the retention of Cincinnati's Human Rights Ordinance and opposing Issue 3, and claimed the discharge was a wrongful violation of public policy. In Ohio, as in most states, private employment is generally at-will, meaning that an employee can be fired "for any reason or no reason." However, as the court explained, the Ohio Supreme Court has recently recognized exceptions to the at-will rule based on the theory that some discharges may offend public policy and thus should be prohibited. The court found no basis to support a public policy exception to protect gay and lesbian employees from discrimination based on their sexual orientation, concluding that a discharge based on an employee's sexual orientation does not violate Ohio's public policy. First, the court stated, Greenwood has no cause of action under the Ohio civil rights statutes because they do not protect against sexual orientation discrimination. Second, the court held that Greenwood has no claim based on 1983 Executive Order 83-64 issued by then-Governor Celeste, which prohibits sexual orientation discrimination "within the executive branch of the state government," refusing to interpret the order as a general policy statement against sexual orientation discrimination sufficient to support a public policy exception. Third, the court held that the Cincinnati Human Rights Ordinance was insufficient authority to support a new public policy exception because "public policy which warrants an exception to the [at-will rule] must be of uniform, statewide application," and not "a single municipal ordinance," especially not one with the history of this ordinance. The court also rejected Greenwood's claim that he was wrongfully discharged for his pro-bono work in support of the Human Rights Ordinance and that such discharge violated public policy because it interfered with his participation in the political process. The court noted that unlike some states (such as California), Ohio has neither policies nor statutes protecting employees' political activities from interference by employers. The court concluded that if Ohio wanted to protect employees in the same manner, the Ohio legislature would pass a statute protecting such political activity. Since there is no such protection in Ohio, the court could not find that Greenwood's firing for his political activities violated public policy. As to Greenwood's invasion of privacy claim, the court found that the trial court erroneously granted the defendant's motion to dismiss. Greenwood alleged that he changed his employee benefit forms to list his same-sex partner as the beneficiary of his insurance and pension benefits and that another employee of the firm disclosed this information to persons who had no need for the information. The court found that the "disclosure tort" which may be implicated under this set of facts is the "publicizing of private facts". To prove this tort the plaintiff must show that a private fact was publicly disclosed and that such disclosure "would be highly offensive and objectionable to a reasonable person." The court held that regardless of the definition of "public" they "decline to hold as a matter of law that no facts could exist" that Greenwood can prove to support his claim and entitle him to relief. Greenwood also argued that his dismissal for working in opposition of Issue 3, an "unpopular cause," violated the Code of Professional Responsibility. However, the court held that since he failed to raise this claim previously he was foreclosed from raising it on appeal. Greenwood has petitioned for en banc review of the dismissal of his wrongful discharge claim. E.G.A. LESBIAN/GAY LEGAL NEWS Supreme Court May Hear Romer Argument Without Rehnquist When the Supreme Court hears oral argument in Romer v. Evans, the Colorado Amendment 2 case, on October 10, Chief Justice William H. Rehnquist may be missing from the bench. Rehnquist had spinal surgery on Sept. 27 to relieve severe back pain that has plagued him for eighteen years and that became "almost crippling" as the beginning of the Supreme Court's term approached, according to news reports. The Washington Times reported Sept. 28 that doctors knowledgeable about the procedure performed on Rehnquist predicted he might miss sitting for oral arguments for several weeks. How this might affect the Court's consideration of the case was a matter for speculation; in recent years, some of the Justices have used transcripts and tapes in order to participate in cases when they could not be present to hear the argument, but sometimes a member of the Court will abstain from participating in such circumstances. During a prolonged recuperation from surgery in 1985, Justice Lewis F. Powell missed the oral argument in National Gay Task Force v. Board of Education of the City of Oklahoma City, resulting in a tie vote on the Court that affirmed a lower court holding striking down an anti-gay state law affecting public school teachers. 729 F.2d 1270 (10th Cir. 1984), aff'd by equally divided court, 470 U.S. 903 (1985). When Justice Powell recuperated, he went through the 4-4 votes taken in his absence and indicated which cases he wanted to hear argument on; those were set for reargument, and the others were announced as tie votes. Should a similar tie occur in Romer due to a decision by Rehnquist not to participate, the Colorado Supreme Court decision would stand without a U.S. Supreme Court opinion being issued. Attorneys participating in oral argument will be Colorado Solicitor General Tim Tymkovich and former Colorado Supreme Court Justice Jean Dubofsky. A.S.L. Federal Appeals Courts to Address Anti-Gay Military Policy After a 3-judge panel of the U.S. Court of Appeals for the 4th Circuit heard arguments on September 12 in Lt. Paul G. Thomasson's challenge to the "don't ask, don't tell" military policy under which he was discharged earlier this year, the panel requested the full circuit to hear the case en banc. The 13-member circuit has set reargument for Dec. 5. The circuit court had already granted Thomasson's petition for an expedited hearing after District Judge Claude Hilton rejected his constitutional challenge to the policy. Noting Thomasson's stellar service record going back over ten years, his attorney, Allan B. Moore, argued to the 3-judge panel that "Unit cohesion has nothing to do with the ability of acknowledged homosexuals to serve," reported the Washington Post (Sept. 13). "We are deferring to a hypothetical serviceman whom policymakers believe is not capable of rising above personal prejudices. . . Lt. Thomasson has changed the views of people with whom he has served." Deputy Attorney General Edwin Kneedler, defending the military policy, argued that "Sexual orientation is a private matter, but once someone states he is homosexual, it takes it out of private and gives rise to the apprehensions this statute tries to prevent." Kneedler contended that the policy focuses on behavior rather than speech, indulging a presumption that those who announce they are gay must have a "propensity" to engage in "homosexual conduct" allegedly disruptive of military order and morale, which the military has a right to prevent by discharging them. Press reports seemed to indicate some judicial doubts about the government's arguments by the panelists. Judge J. Michael Luttig commented that the policy adopted by the Clinton Administration seemed to differ from what Congress intended in it's version of "don't ask, don't tell," resulting in the strange conflation of status and conduct in the government's argument. The Washington Times reported that both of the other judges on the panel, M. Blane Michael and Diana Motz, "seemed skeptical of the government's argument." "Isn't it awfully dangerous to link speech and propensity," asked Michael. Motz got into a contentious argument with Kneedler about the possibilities of gay servicemembers being able to rebut the presumption about propensity to engage in conduct without in fact disclaiming their homosexuality, according to a report by the Associated Press published in several newspapers. Due to occur shortly is oral argument in the 2nd Circuit, where the government is appealing District Judge Eugene Nickerson's decision in Able v. United States finding the military policy unconstitutional. Meanwhile, U.S. District Judge Lyle Strom in Omaha issued an order temporarily blocking the discharge of Air Force Captain Richard Richenberg under the anti-gay policy, pending a hearing on the merits of his constitutional challenge (N.Y. Times, Sept. 10). A.S.L. District Judge Scornful of Military Arguments In a decision that barely disguises the court's dislike for the military's policy toward gay people, the U.S. District Court for the District of Columbia remanded the case of a soldier discharged under the old policy and ordered the Marine Corps to reprocess his discharge under the new "don't ask, don't tell" policy. Elzie v. Aspin, 1995 WL 510163 (D.D.C. Aug. 14). Justin Elzie was a one-time Marine of the Year -- a model soldier. On the eve of leaving the military voluntarily under a special retirement program, Elzie came out publicly. The military discharged him under its old policy on gays, for the sole reason of his admission of his sexual orientation. Because of the discharge, Elzie lost his right to participate in the retirement program. The court's order enforces the parties' agreement to reprocess Elzie's discharge under the new "don't ask, don't tell" policy, but it does not stop there. The court derides the "folly" of the blanket exclusion and distinguishes Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (holding the old policy constitutional) on the ground that Elzie (unlike Steffan) was challenging not only the policy, but also his exclusion from the retirement program, and on the ground that the Steffan court did not consider the argument that the application of the policy in cases like Elzie's might constitute improper viewpoint discrimination, implicating the recently re-invigorated First Amendment. Justin Elzie will presumably fare better under the new policy, but one wishes this court had a real chance to sink its teeth into the old policy. D.W. Oregon Appeals Court Refuses to Block Vote on Anti-Gay Initiative In Boytano v Fritz, 1995 WL 505431 (Aug. 24), the Oregon Supreme Court held that neither the state's constitution nor ORS 659.165(1) prevented the people of Klamath Falls City from voting on an anti-gay initiative. The plaintiff sought to enjoin the City from placing on the ballot an initiative to amend its charter, contending that Oregon law removed the issue from the initiative process. The proposed amendment would forbid the City or its officials from passing or enforcing "any ordinance, rule, regulation, policy or resolution that extends minority status, affirmative action, quotas, special class status, or any similar concepts based on homosexuality or which establishes any categorical provision such as `sexual orientation,' `sexual preference,' or any similar provision. . . ." Expressly excepted from the initiative's scope was the adoption of "provisions prohibiting employment decisions based on factors not directly related to employment." One of those factors is an individual's "lawful private sexual behavior," knowledge of it, or an individual's expression of it. The initiative would also prevent the City from spending any money "promot[ing] homosexuality." The plaintiff contended that by voting on the measure, the people would be enacting it in violation of ORS 659.165(1). The statute provides, in part, that "[a] political subdivision of the state many not enact or enforce any charter provision, ordinance, resolution or policy granting special rights, privileges or treatment to any citizen or group of citizens on account of sexual orientation, or enact or enforce any charter provision, ordinance, resolution or policy that singles out citizens or groups of citizens on account of sexual orientation." The Court conceded in a footnote that the initiative did indeed "single out" people on the basis of sexual orientation. ORS 659.165(1)'s use of the word enact, however, saved a place on the ballot for the initiative. Relying on a college dictionary, the court stated that the word enact meant to "make into a law; esp: to perform the last act of legislation upon (a bill) that gives the validity of law[.]" An initiative is not "made into law" until approved by a majority of the voters. An initiative that is not so approved is not "enacted," though it be voted on by the people. "[V]oting and enactment are not synonymous; voting precedes enactment and is necessary to it, but enactment does not occur every time a vote has occurred." The Court also found that this definition comported with the Oregon Constitution. Article IV, section 1(2)(a) reserves to the people the initiative power and to "enact or reject them at an election." Since enact was juxtaposed with reject in the context of an election, voting had to be an act distinct from enacting. Thus, the Court held that ORS 659.165(1) did not prevent local elections on initiatives such as this one. The Court rather summarily dismissed plaintiff's claim that the state's adoption of ORS 659.165 preempted local initiatives of this type under Article IV, section 1(5) of the Oregon Constitution. That section reserves the initiative power to the people of a municipality "as to all local, special and municipal legislation of every character. . ." Plaintiff relied on the Court's decision in La Grande/Astoria v. PERB, 586 P.2d 765 (1978) for her assertion that the initiative was not "municipal legislation." In La Grande/Astoria, the Court held that state law addressed to substantive social objectives prevailed over contrary local policies. According to the plaintiff, ORS 659.165 demonstrated a statewide policy regarding laws that single out citizens on the basis of sexual orientation, preempting the field. The Court said that its discussion of ORS 659.165 disposed of this argument and that reliance on La Grande/Astoria was misplaced. Before reaching the merits of the case, the Court engaged in an extended discussion of justiciability and preservation. It found it was presented with a justiciable controversy because the plaintiff's claims did not require the court to inquire into the substance of the measure. The Court had already held that courts may examine only matters "extraneous to the language of the measure" prior to its adoption. Prior to this decision, only challenges based on a procedural defect or on the legal sufficiency of an unpassed measure raised justiciable controversies. Here, the Court discovered another justiciable challenge to an unpassed measure: the claim that the measure's subject matter is not a proper one for a local initiative. According to the Court, that claim did not require it to examine the substantive validity of the proposed initiative. It also found that the plaintiff had preserved her claims under ORS 659.165(1) by raising at trial the contention that Oregon law forbids initiatives of this type. The statute had been enacted after trial, but before papers were filed in the appeals. The Court concluded that it was less important for a party to identify the source of its argument at trial than it was for the party to raise the issue in the first place. Thus, the plaintiff's development, on appeal, of arguments based on the statute to further her claim that Oregon law prohibited this initiative was properly preserved. M.S.R. Federal Court Preliminarily Enjoins Scrambling of Gay Cable Broadcasts Ruling Sept. 20 in Goldstein v. Manhattan Cable Television, Inc., 1995 WL 562182 (S.D.N.Y.), U.S. District Judge Leonard Sand preliminarily enjoined Time Warner Cable of New York City from scrambling sexually-oriented programming produced by Al Goldstein, Robin Byrd, and Lou Malleta (Gay Cable Network) to comply with federal rules on cable transmission of "offensive" material. Time Warner had mailed letters to 290,000 Manhattan cable TV subscribers during the summer, informing them that, effective October 1, Channel 35, the cable channel that carries sexually explicit programming, would be scrambled except for those subscribers who returned a signed reply card requesting access to this channel. At a hearing on the plaintiffs' motion for preliminary injunctive relief, counsel for Time Warner represented that about 50,000 reply cards requesting access had been received. The motion was decided in the context of an ongoing lawsuit against Time Warner (under the name of its predecessor company, Manhattan Cable) begun in 1990. In that suit, the defendant had agreed by judicially-approved stipulation to preserve the status quo and continue broadcasting Al Goldstein's program, "Midnight Blue," until a final adjudication of the constitutionality of government regulations affecting "indecent" program, then pending in the D.C. Circuit. In the intervening time, Congress amended the Cable Act to allow cable companies to refuse to carry "indecent" programming on their systems, and requiring them to take steps to prevent children from accessing such program if the cable operators decided to continue providing it to subscribers. Meanwhile, a 3-judge panel of the D.C. Circuit held in 1993 that the federal regulations were unconstitutional, 10 F.3d 812, but the Circuit en banc voted 7-4 to reverse and uphold the regulations, 56 F.3d 105 (1995). The D.C. Circuit also issued an order staying its decision while the opponents of the regulation filed their certiorari petitions with the Supreme Court. After the D.C. Circuit en banc ruling, Time Warner apparently decided to go ahead unilaterally to implement its signal-scrambling program, without seeking any formal judicial relief from its stipulation under which it was required to continue carrying "Midnight Blue." Goldstein, producer of "Midnight Blue," was joined by Robin Byrd and Lou Malleta, producers of "The Robin Byrd Show" and Gay Cable Network programming, respectively, in asking the court to block Time Warner's scrambling policy. Time Warner contended it was not violating the stipulation with Goldstein, because it would continue to broadcast "Midnight Blue," and that the stipulation did not apply to Byrd and Malleta. In his hastily drafted opinion of September 20 (after lengthy oral arguments on September 18), Judge Sand found that the unilaterally- adopted scrambling plan did violate the stipulation. More significantly, he found that the addition of Malleta to the case introduced a new element not considered in the D.C. court case: the argument that potential gay viewers of Gay Cable Network could be deterred by the requirement of sending in a card specifically requesting access. Sand found that this argument tipped the balance on likelihood of success on the merits more heavily toward the plaintiffs than in the D.C. case, citing, by analogy, Lamont v. Postmaster General, 381 U.S. 301 (1965), which he characterized as "holding unconstitutional a statute which required the Postmaster not to deliver mail which was `communist political propaganda' unless the addressee returned a card requesting its delivery. Under postal regulations, any request to stop delivery of such mail would be honored.)" Sand noted that cert petitions had been filed in the D.C. case, the government's responsive papers were expected to be filed shortly, and the Supreme Court would likely announce a decision on certiorari relatively soon. In light of these considerations, Time Warner's unilaterally-imposed October 1 deadline appeared quite unreasonable, and Sand preliminarily enjoined Time Warner from going ahead before a final disposition on the merits. A.S.L. Court Won't Set Ramrod Murderer Free The New York Appellate Division, First Department, found that Ronald Crumpley continues to suffer from a dangerous mental disorder and ordered that he remain in Kirby Forensic Psychiatric Center, a secure facility, for a period not to exceed one year. Crumpley v. Wack, 629 N.Y.S.2d 395 (June 20, 1995). Crumpley was originally placed in that facility after successfully interposing an insanity defense after being accused of killing two men and wounding six others in front of the Ramrod, a New York City gay bar, in 1980. Crumpley, a polysubstance abuser, began his life of crime in the 1970s to support his habit. Late in that decade he began to believe that gay men were agents of the devil and that they were out to make him a homosexual. In November of 1980 he told his father that he was being pursued by hundreds of gay men. Crumpley's father, a minister, suggested that he had "a homosexual problem himself." Later that month, Crumpley stole a .357 magnum from a gun store in Virginia and came to New York City. Still believing he was being followed by gay men he proceeded to Washington Street in Greenwich Village and began to shoot at people he believed to be gay standing outside the Ramrod bar. Two men were killed and six others injured. Many escaped by jumping behind parked cars. At trial, Crumpley testified that they had actually escaped by disappearing magically into the air. . . probably like some sort of "fairy princess." At trial, experts testified that Crumpley believed that homosexuals were controlling his brain. Crumpley was found innocent by reason of insanity and sent to a psychiatric hospital. At his release hearings in 1993, and a subsequent hearing in 1994, experts testified that Crumpley suffers from mixed personality disorder with antisocial traits, paranoid trait and narcissistic traits. He was ordered to remain in the hospital. Crumpley appealed the ruling asking for a hearing before a jury. The appeal was granted and the jury recommended his release. Supreme Court Justice Martin Evans vacated the jury verdict and modified the previous ruling directing that Crumpley be transferred to a minimum security facility. Justice Evans' ruling was appealed to the Appellate Division. The Appellate Division has the power to make its own findings of fact when reviewing a non-jury determination. Fortunately they did just that. In a per curiam opinion, the court found that the evidence on the record was clear that Crumpley was still very ill and continued to present a danger to others, so it ordered his continued retention in a high security facility. We are safe. . . for the time being. T.V.L. D.C. Court of Appeals Reverses Adoption by Lesbian Foster Mother A 3-judge panel of the District of Columbia Court of Appeals reversed a trial court order granting an adoption petition by the white lesbian foster mother of a young black boy, finding that the trial court applied the wrong standard for determining whether the wishes of the boy's biological mother should be overridden by the court. In re T.J., M.D. & C.J., 1995 WL 555106 (Sept. 21). The opinion by Associate Judge King makes nothing in particular of the sexual orientation of the foster mother and her domestic partner, although it does indicate that "the difficulties and prejudices [the child] would be faced with as a result of a transracial lesbian adoption" were among the factors to be considered by the trial court in determining the adoption petition. In this case, the biological mother was unable to care for the child, who lived for short periods in a series of homes before being placed with the petitioner, M.D., and her domestic partner. The child, who had been a difficult, developmentally lagging child, blossomed in the home of M.D. and formed a "fierce attachment" to M.D. and her partner, a lawyer and a psychologically-trained sociologist employed by the Children's Defense Fund, respectively, both of whom went out of their way to reinforce the child's racial identity. However, the child's biological mother opposed M.D.'s adoption petition, expressing her preference that the child be adopted by a great-aunt, in order to preserve the family tie to the child. The trial court decided that as between M.D. and the great- aunt, the preponderance of the evidence showed that M.D. would be the preferable parent, noting particularly the child's attachment with and bonding to M.D. as a parent and expert testimony that breaking up that bond could cause significant damage to the child's healthy development. Judge King wrote that the "preponderance" standard was inappropriate in a case where the biological mother was competent to express a preference. Rather, King wrote, "the court can `terminate' the parents' right to choose only if the court finds by clear and convincing evidence that the placement selected by the parent is clearly not in the child's best interest, and the consent to adoption has been withheld by the parent contrary to the child's best interest. The non-parent seeking adoption must carry that burden of proof." In this case, since the trial court also found the great-aunt to be fully competent to serve as an adoptive parent for the boy, the non-parent, M.D., did not meet the burden articulated by the court. The experts were divided over how harmful the impact of breaking the bond with M.D. would be, and the appeals court found that preserving family ties between the boy and his birth family was an important factor. This analytical portion of the opinion makes no mention of M.D.'s sexual orientation as a factor. A.S.L. Military Appeals Court Affirms Sodomy Conviction on Testimony of Spurned Boyfriend A court-martial that found a U.S. Air Force captain guilty of sodomy but acquitted him on charges of marijuana use acted properly, according to a ruling by the U.S. Air Force Court of Criminal Appeals, even though both offenses hinged on the testimony of a single informant. The three-judge appeals panel upheld the sodomy conviction and dismissal of Capt. Troy D. Carlyle in U.S. v. Carlyle, 1995 WL 548483 (A.F. Ct. Crim. App., Aug. 28). Inconsistent verdicts are not grounds for reversal, held the court. While the court-martial sitting at Pope Air Force Base in North Carolina discounted the informant's testimony about alleged marijuana use by Carlyle, it could still believe the informant's account of sodomy. It noted that the informant's "accusatory phone calls to the appellant's commander in the middle of the night and to the Air Force Office of Special Investigations the following morning are actions consistent with the outrage expected from a betrayed boyfriend upon finding the man he loved in bed with another man." Carlyle's roommate, identified as Captain T. in the ruling, met the informant, Mr. B., in August 1991, and the two men began a relationship. In November of that year, Carlyle accompanied Mr. B. to Oz, a gay club near the Air Force base. Mr. B. testified that Carlyle invited him to spend the night, and performed fellatio on him. On the night of June 1, 1992, Mr. B. discovered Captain T. in bed with another man. Half an hour later, Mr. B. telephoned the officers' commander and accused Captain T. and Carlyle of homosexual activity and marijuana use. The next morning, Mr. B. telephoned the Air Force Office of Special Investigations. When Carlyle was questioned about visits to the gay club, which was off- limits to Air Force personnel, he showed the investigator his membership card. He denied that he was homosexual, but said that he had been to gay clubs in several North Carolina cities with Captain T. At the court-martial, Carlyle was convicted of failing to obey the off-limits regulation. In his appeal, Carlyle argued that the list of off-limits establishments was not properly posted, and that the "don't ask, don't tell" policy focuses on homosexual conduct, and does not encompass mere presence in a gay club. The appeals board ruled that Carlyle did not raise these issues at his court-martial, and thus was barred from raising them on appeal. Furthermore, held the panel, the off-limits list was posted on bulletin boards and was broadcast on the cable channel reaching all quarters at Pope Air Force Base and the nearby Marine base at Ft. Bragg. M.N.S. New York Trial Court Voids Application of Zoning Limits to Video Booths in Adult Bookstore New York State Supreme Court Justice John DiBlasi ruled in Barbulean v. City of Newburgh, NYLJ, Sept. 1, p. 28, col.6 (Orange Co.), that zoning rules being used against an adult bookstore that installed individual video booths violated the due process clause of the federal constitution by giving unguided discretion to zoning officials. While upholding the right of the municipality to adopt zoning rules regulating the location of adult uses, DiBlasi found that the city's zoning rules were fatally flawed because instead of just listing specific factors upon which zoning authorities were to rely in determining whether a special use permit was necessary for the facility, the rules allowed authorities to rely on unspecified other factors as well. Specifically, the rules state that "the Zoning Board of Appeals shall give consideration, among other things, to any or all of the following as they may be appropriate," and then list twelve specific factors. DiBlasi found that the city ordinance is "invalid because it vests the Appeals Board with virtually unlimited discretion to grant or withhold a special use permit," and thus supported Barbulean's argument that it could be used through content-based decisions. A.S.L. Florida Prosecutors Make Deal to Get at Serial Killer of Gays Palm Beach County State Attorney Barry Krischer struck a plea bargain with Sean Stephens, accused of felony murder in the death of Brenden Meehan, a gay man, under which Stephens will testify against Ronald Knight, who joined Stephens in the murder. Knight is alleged to have previously another gay man, Richard Kunkel, using a similar approach of luring the man out of a gay bar, then robbing and murdering him. Stephens will receive a ten-year prison term, with eligibility for parole in about seven years. The prosecutor hopes to convict Knight on the felony-murder charge and obtain a death sentence or life imprisonment without parole. Sun Sentinel, Sept. 1. A.S.L. Federal Court Refuses to Abstain on Lesbian Police Officer's Retaliation Claim In an openly-lesbian police officer's suit against her police chief and related municipal bodies, a New York federal district court denied the defendants' motion to stay or dismiss pursuant to the abstention doctrine. Gubitosi v. Kapica, 1995 WL 500181 (August 10). The officer was suspended, and charges were brought against her under a county police protection act, two months after she "denounced many police practices" during a performance review. Seeking both reinstatement and damages, the officer then commenced this litigation, asserting that the suspension and charges constituted retaliation by the police chief, thereby violating her free speech and due process rights. The court held that, even where the necessary predicates for abstention were present, abstention was not warranted if the underlying state proceedings were undertaken in bad faith. The court cited Cullen v. Fliegner, 18 F.3d 96 (1994), and Lewellen v. Raff, 843 F.2d 1103 (1988), as supporting this exception to the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971). Crediting the officer's allegations, as was dictated by the procedural posture of the case, the court held the allegations sufficient to raise a retaliation claim warranting application of the bad faith exception to the abstention doctrine. The officer alleged that, during her performance review, she accused the police department of tolerating improper, and sometimes illegal, conduct by officers, enforcing a strip search policy focussing on female and African-American detainees, and using public funds for officers' personal benefit. R.M. Federal Court Finds "Imputation of Homosexuality" Still Defamatory Per Se in New York How far have we come, really? In an unofficially published decision in Murphy v. Pizarrio, 1995 WL 565990 (S.D.N.Y., Sept. 22), U.S. District Judge John F. Keenan, ruling on a motion to dismiss a defamation claim by a prisoner against a correctional officer who had called the prisoner a "homosexual," found that New York law still treats an "imputation of homosexuality" as defamatory per se, meaning there is no need for the plaintiff to allege "special damages" because the mere imputation of the characteristic is considered to constitute an injury. Keenan cited N.Y. Appellate Division decisions from 1986 and 1981 as authorities, noting a contrary Supreme Court ruling from 1962 and a federal district court ruling from 1984 that cited earlier case authority. One might question, in light of social changes since the mid-1980s, whether the circumstances underlying a rule that an "imputation of homosexuality" is defamatory per se no longer pertain in New York. Changed circumstances include the election and/or appointment of openly gay public officials, including judges and legislators, the adoption of policies barring discrimination on the basis of sexual orientation by New York City (where the alleged defamatory statement was made), and the establishment of a domestic partnership registry available to same-sex couples in New York City. A.S.L. EEOC Takes A Stand on Same-Sex Workplace Harassment; Virginia District Court Hostile to Claim, But Florida Court Upholds Damages Weighing in on an issue that has sharply divided the lower federal courts in privately-initiated Title VII lawsuits, the Equal Employment Opportunity Commission (EEOC) filed suit September 7 in the U.S. District Court in Boston on behalf of three automobile salesmen who claim to have suffered sexual harassment from their male supervisor. EEOC v. H.J. Nassar Motor Co., Inc., No. 95- 11993JLT (E.D.Mass.). BNA's Daily Labor Report No. 175, 9/11/95, reports the comment of Spencer H. Lewis, Jr., director of the New York District Office, that the agency is committed to action to provide employees "a workplace free of sexual harassment, regardless of their sex." The complaint alleges that the supervisor "grabbed crotches and backsides of his employees and forcibly kissed them; engaged in sexually offensive conversations about masturbation and sex acts with men; requested sexual favors from male employees in exchange for better hours and cars; pulled down his pants and coerced another employee into pulling down his pants during a sale meeting." (The quotation is from BNA's report, not the complaint.) This sounds like a rather unusual auto dealership, since the complaint also alleges that the owner was aware of this conduct by the supervisor but did nothing about it, even allegedly threatening and intimidating an employee for complaining about the harassment. In reading the increasing number of cases dealing with allegations of same-sex harassment by supervisors, one wonders how often these cases involve genuinely abusive conduct by supervisors as opposed to situations where anti-gay employees are trying to get rid of a gay supervisor; there's really no way of telling from the terse factual recitals of complaints or judicial opinions. U.S. District Judge Claude Hilton, who recently upheld the military anti-gay policy against constitutional attack in the Thomasson case, issued a decision Aug. 8 dismissing a same-sex harassment claim brought under Title VII. Mayo v. Kiwest Corp., 1995 WL 558570 (E.D.Va.). Jerry Mayo alleged "that he was sexually harassed by his male supervisor, Richard Flanagan, who made sexually explicit and vulgar comments to him, grabbed him in a sexual manner, and told others that Plaintiff was a homosexual." Mayo alleged that after he complained about this harassment, he was discharged in retaliation for his complaint. He also asserted pendent state law tort claims. In dismissing the action, Hilton followed the lead of another 4th Circuit district court in Hopkins v. Baltimore Gas & Electric Co., 871 F.Supp. 822 (D. Md. 1994), presently pending on appeal, rejecting both the discrimination and retaliation claims, and dismissing the pendent claims on jurisdictional grounds. On Sept. 5, U.S. District Judge C. Clyde Atkins (S.D.Fla.) affirmed a damage award of $1.7 million to a woman who claimed she had been discharged as a result of ending a sexual relationship with the company's female general manager. Atkins had previously ruled that Title VII applied to the plaintiff's sex discrimination complaint, and awarded the damages after a non-jury trial, subsequently rejecting a request for a new trial by the employer. Llampallas v. Mini-Circuits Lab, Inc., reported in BNA Daily Labor Report No. 185, 9/25/95, p. A-3; Miami Herald, Sept. 19. The employer's attorney announced that the company would pursue an appeal, indicating that he is "hopeful that the 11th Circuit will rule that same-sex harassment is not covered under Title VII." A.S.L. Lawsuits Challenge Anti-Gay City Charter Provisions in Oregon Lawsuits have been filed in two Oregon cities challenging the constitutionality of voter-enacted city charter amendments that prohibit civil rights protection for gay people and forbid the municipalities from spending any money to promote or express approval of homosexuality. In Lebanon, suit was filed on behalf of Sydney "Skip" Jackson, a Presbyterian minister, who invokes the Presbyterian Church's "official position" of support for "full civil rights for gays and lesbians." Lebanon's anti-gay amendment was enacted in 1993. In Albany, suit was filed on behalf of Mary Bonds, a counselor for the Linn County Juvenile Department, challenging the 1994 amendment. Unfortunately, the brief newspaper report in The Oregonian on Aug. 23 provides no further details about the theories of the lawsuits or in which courts they were filed. A.S.L. District Court Rules Again In Long-Running Challenge to New Jersey Anti-Discrimination Law U.S. District Judge William G. Bassler (D.N.J.) ruled Sept. 13 in the latest installment in the long-running saga of Presbytery of New Jersey v. Florio, Civ. No. 92-1641. The Orthodox Presbyterian Church, its Wildwood, New Jersey affiliate, and Rev. David B. Cummings, the plaintiffs, charged that the New Jersey law banning sexual orientation discrimination, enacted in the last days of the Democratic legislature that was voted out in a massive tax revolt, violated their First Amendment rights of free exercise of religion and freedom of speech. Most of the issues in the case had been permanently resolved against the plaintiffs, but the 3rd Circuit had ruled that Rev. Cummings still had some live claims as an individual whose rights might be threatened by enforcement of the law, despite an affidavit from the enforcement authority disclaiming any intention to enforce the sexual orientation provisions against religious institutions or authorities based on their opposition to lesbian and gay rights. In this lengthy opinion, designated as not for publication, Judge Bassler ultimately concluded after much detailed analysis of issues of ripeness, standing and abstention, that a ruling on the merits of Rev. Cummings' claim should await an adjudication by the state courts about the scope of the law's application to him. Along the way, Bassler narrowed the issues even further by ruling against Cummings on the merits as to some of his remaining claims. A.S.L. Court Rejects Bias Suit by Lesbian Couple Seeking Insemination The Minneapolis Star Tribune reported that Hennepin County District Judge Robert Schiefelbein dismissed an action under the state's Human Rights Law alleging sexual orientation discrimination by a doctor at an obstetrics & gynecology clinic in St. Louis Park. Heeney v. Erhard (Sept. 13). Karen Heeney and Julia Beatty requested that Dr. Lisa Erhard artificially inseminate Heeney and deliver the resulting child. Erhard refused the request. Heeney and Beatty sued under the state law forbidding sexual orientation discrimination, but the judge found that this situation was not covered under the law. "This court feels that a determination compelling or prohibiting artificial insemination by donor in a lesbian is a matter of policy for the state Legislature, not the courts," he wrote, noting as well that the 1993 Human Rights Act amendment adding sexual orientation also emphasized the state's policy favoring heterosexual marriage over other "lifestyles." In defending the case, Erhard's attorney argued that she had not turned down the request because of the sexual orientation of Heeney and Beatty, but rather due to her unavailability for the schedule required for artificial insemination, a procedure she did not normally perform. The plaintiffs' lawyer, Patricia Gambill, told the newspaper that they were undecided about whether to file an appeal. A.S.L. Chicago Hearing Officer Rules Against Scouts in Discrimination Case Chicago Human Rights Hearing Officer Jeffrey L. Taren ruled that the Chicago Area Council of Boy Scouts of America violated the city's human rights law by responding negatively to an employment inquiry from G. Keith Richardson, a former Eagle Scout, on account of his sexual orientation. Richardson telephoned the Council, asking whether it would hire a gay man, and was told "No way." Taren rejected the respondent's argument that it was a religious organization exempt from complying with the sexual orientation provisions of the ordinance. Taren found, "There is nothing associated with the hiring of an openly gay man which would require the Respondent to alter anything other than its discriminatory hiring policy." Chicago Tribune, Sept. 20. A.S.L. Credentials Threatened for S.F. Science Teachers Over Talk by Gay Group A committee on teacher credentials has recommended to the California Teacher Credentialing Commission that two San Francisco high school science teachers have their teaching credentials revoked as a result of a 1992 incident when a classroom speaker from Community United Against Violence, a gay anti-violence group, made sexually explicit comments to a class of eleventh graders. According to news reports, the teachers had combined their classes to hear the speakers, who engaged in discussion with the students that led to some sexual comments by one of the speakers. When students told their parents what had happened, all hell broke lose. Parent complaints to the school administration were rebuffed, on the ground that the teachers themselves had done nothing wrong. But the parents then filed charges with the credentialing commission. The teachers were not named in news reports. The committee recommendation now goes to an administrative law judge, whose decision is subject to review by the Commission and eventual appeal to the courts. A spokesperson for the teacher's union expressed shock at the committee's recommendation, and a spokesperson for the San Francisco Unified School District cited the good records of the teachers and urged that the commission "let them continue their careers." San Francisco Chronicle, Sept. 26 & 27; San Francisco Examiner, Sept. 28. A.S.L. NY Court System Proposes to Collect Sexual Orientation Data in Capital Cases In rules proposed to implement New York State's new capital punishment law, the state's highest court has proposed a requirement that court clerks record the "sexual preference or behavior" of capital defendants and victims on a data form that must be submitted to the Court of Appeals within 45 days of the trial court's disposition of a case where the indictment seeks the death penalty. (The forms need not be submitted if the indictment is dismissed or the defendant is acquitted.) The categories available for the clerk to designate for this information are "heterosexual, homosexual, bisexual, transvestite" or "unknown." Apparently the New York Court of Appeals can't conceive that a transsexual would be indicted for a capital offense? (Or could it be that the Court's rule-drafters are unaware of the distinctions between transsexuals and homosexuals or between transsexuals and transvestites?) The Court is accepting written comments on the proposed rules (which are to be submitted in duplicate) until October 16. Comments can be addressed to The Hon. Donald M. Sheraw, Clerk of the Court of Appeals, 20 Eagle Street, Albany, New York 12207-1095. A.S.L. Legislative Notes It was belatedly revealed late in August that Virginia Beach, Virginia, City Manager James Spore last spring unilaterally amended city employment policies to ban anti-gay discrimination or harassment. Spore acted on the recommendation of the city's Equal Employment Opportunity Advisory Committee. Apparently, action by the city council or the mayor are not required. The change in policy came to light due to the efforts of Virginians for Justice, a gay rights lobbying group. Three other Virginia cities, Alexandria, Arlington, and Charlottesville, have formal policies prohibiting sexual orientation discrimination in city employment. Daily Press, August 26. Trying to contain a growing unrest on the part of local gay citizens and gay tourists, the town council of the resort community of Saugatuck, Michigan, passed a resolution condemning anti-gay discrimination, but stuck to its July vote against adopting a formal ordinance to that effect. The ordinance was proposed after a gay couple reported being discriminated against by a guest house in the community. Detroit Free Press, Sept. 16. A.S.L. Domestic Partnership & Marriage Notes Additional employers reported to be extending domestic partnership benefits to the same-sex partners (and their dependents) of employees: Holland & Knight, a 1,000+ employee law firm in Florida, announced extension of benefits effective September 1. The action was taken at the instigation of an openly gay partner, Greg Baldwin. * * * Glaxo Wellcome, Inc., the American subsidiary of Burroughs Wellcome, the manufacturer of AZT and the world's largest pharmaceutical company, announced it would extend medical and dental benefits to the same-sex partners of lesbian and gay employees. (Both H&K and Glaxo reports were from the Sun Sentinel, a Florida paper, on Aug. 31.) * * * Syracuse University (in Syracuse, N.Y.) has decided to recognize same-sex domestic partners of employees, who will be eligible for free tuition, discounts at university stores, counseling and job-placement services. The university is negotiating with its insurers to extend health and life insurance benefits "soon," according to a university spokesperson. Buffalo New, Sept. 2. * * * Vermont Public Radio reported Sept. 22 that the town council of Middlebury, Vermont, voted to extend health insurance and family leave to domestic partners of municipal employees. State employees of Vermont already enjoy domestic partnership benefits by virtue of a collective bargaining agreement. As work continued in Congress on a new appropriations bill for the District of Columbia budget, it appeared possible that for the first time language might be removed that had blocked the District from implementing its domestic partnership benefits plan for city employees, according to a Sept. 15 report in the Washington Blade. The Boston Globe, Aug. 28, reported that the Provincetown, Massachusetts, town clerk's office has been doing a brisk business in domestic partnership ceremonies. P-town adopted a domestic partnership ordinance in 1993 that is not limited to residents of the town. Many vacationing couples have taken advantage of the situation to register their partnerships and receive an official certificate. "Tangible" perks: partners can visit each other in intensive-care units or jail holding cells. Problem: P-town has neither a hospital nor a jail. But just in case they ever decide to build either. . . A.S.L. Law & Society Notes Maine Governor Angus King, a political independent, as well as Democratic House Speaker Dan Gwadosky and Democratic Attorney General Andrew Ketterer, have declared their opposition to Question 1, the anti-gay ballot measure that will be proposed to voters in the November election. Joining them in opposition are the Maine Chamber of Commerce, the Maine Council of Churches, and the Maine Medical Association. Boston Globe, Sept. 13. Judges of the federal courts in the 9th Circuit, meeting during the summer for their annual conference, approved a resolution asking the circuit's judicial council to amend the circuit's current non- discrimination in employment rules to add sexual orientation. Oregonian, Sept. 3. At its annual meeting in Chicago, the American Bar Association House of Delegates approved a resolution that "supports the enactment of legislation and the implementation of public policy providing that child custody and visitation shall not be denied or restricted on the basis of sexual orientation." The ABA's Section of Individual Rights and Responsibilities was the lead sponsor, with the Family Law and Litigation Sections co-sponsoring, together with the National Association of Women Judges, National Association of Women Lawyers, and the National Lesbian and Gay Law Association. The Portland, Oregon, School Board approved a resolution on Aug. 31 to ban employers who discriminate from access to the public schools. In a second resolution, the Board identified the United States armed forces as an employer banned from access under this policy. Oregonian, Sept. 3. Alexandria, Virginia, Circuit Judge Donald M. Haddock ruled Aug. 30 that same-sex couples may not resort to the state's domestic relations courts for assistance with their disputes, according to the Washington Blade, Sept. 1. Ellis Early, an Alexandria resident, sought the assistance of the Alexandria Juvenile and Domestic Relations Court in dealing with abuse by his partner. In a 1994 ruling, Virginia Attorney General James S. Gilmore opined that same-sex couples were not recognized as family members and thus would have to initiate tort actions in the state's general district courts rather than seek retraining orders from the domestic relations courts. The California State Assembly's Rules Committee defeated a proposed resolution calling for restoration of ROTC units at campuses in the state university system. Several of the campuses have excluded ROTC because of its discriminatory policy against participation by lesbian or gay students. Assembly Member Sheila Kuehl, a Democrat from Santa Monica who is the Assembly's only openly lesbian or gay member, spearheaded opposition to the resolution. Sacramento Bee, Sept. 1. Barbra Kavanaugh has become the first openly lesbian or gay person to be elected to citywide office in Buffalo, New York, which her recent election to the city's Common Council. But Jonathan Wilson, a Des Moines, Iowa, school board member who announced that he was gay, was defeated for reelection after serving three terms on the board, after being targeted for defeat in a vigorous campaign by the Christian Coalition. For only the second time in its history, the Episcopal Church will hold a heresy trial. The defendant, Retired Bishop Walter C. Righter, is charged with having ordained an openly gay, non- celibate man as an Episcopal priest. His prosecutors charge that this violated the Church's rules, but Righter claims that no authoritative Church doctrine prohibited his actions, and pointed out that other, less vulnerable bishops had done the same thing and not been challenged in this way. Oregonian, Sept. 24. A.S.L. International Notes The World Council of Churches, which has scheduled its Eighth World Assembly for Harare, Zimbabwe, in September 1998, is seeking assurances from the government in that country that lesbian and gay delegates to the conference will be able to attend without harassment, in light of the recent "crackdown" on homosexuals spearheaded by the nation's president, Robert Mugabe. Phoenix Gazette, Sept. 23. The British Defense Ministry announced Sept. 4 that it had appointed a special team of representatives from the army, navy and air force to prepare a report on Britain's ban on military service by lesbians and gay men. The report is due in January. This action appears to be responding to a court decision issued in June that upheld the policy against legal challenge but suggested that it should be abandoned. New York Times, Sept. 5. The Appeals Committee for Israel's Fallen Soldier's Families Law denied a survivor's benefits claim by the surviving same-sex partner of a military officer. Colonel Doron Meizel and his partner, Adir Steiner, lived together eight years prior to Steiner's death. Although the plain language of the law appears to apply only to spouses or opposite-sex cohabitants, the Appeals Committee went out of its way to distance itself from the Israel Supreme Court's recent decision in the Denilowitz case (holding that El Al Airlines had to recognize the same-sex domestic partner of a flight attendant). It asserted: "Partners in a same-sex couple cannot give birth and therefore cannot conceptually have a family. The non-recognition of the marriage of the plaintiff and the deceased is not, as the plaintiff's lawyer claims, the by- product of Israeli law, but a by-product of the law of nature." The Committee also asserted that "homosexual relations contradict the values of the state of Israel as a `Jewish state;'" thus, the Committee members would presumably disagree with the Supreme Court's interpretation of the Basic Law, under which the Court found El Al's non-recognition unlawful. We are indebted to Alon Harel of Hebrew University for assistance in reporting on this decision, which was briefly described in a Reuters bulletin on Aug. 28. Israel will conduct a census in October, and for the first time, lesbians and gay men who live together and define themselves as "married" will be treated as partners in census records, according to an article from Yediot Ahronot (Sept. 22), a daily newspaper, as disseminated to subscribers of the GayJews list on the Internet. In response to inquiries from Amit Kama, the Executive Director of the Society for the Protection of Personal Rights in Israel (the umbrella group for gay rights activities in the country), census officials confirmed that any couple who represent themselves as married will be counted as such for census purposes. Our French correspondent reports that a major French insurance company recently decided not to appeal the July 25 decision of the Belfort criminal court that recognized a lesbian couple as family members and ordered the company to pay 732,121 francs in damages and interest to a lesbian after the death of her companion of 10 years in an auto accident caused by the company's insured. Unmarried heterosexual domestic partners in France can obtain partnership certificates from local municipalities that are useful for obtaining public housing, and certain rights under the national health care program, as well as reduced family travel rates on public transit. On Sept. 21, the Atlantic port city of Saint- Nazaire announced it would also issue such certificates to same-sex couples. This apparently set off a stampede to follow suit by left-wing local administrations, including several within the city of Paris and the city of Strasbourg. The Mayor of Paris announced his belief that the certificates were illegal, but the Mayor of the 11th District within Paris countered that Paris issued cohabitation certificates to heterosexual couples despite the lack of precise legal authorization to do so, and said, "There is no reason why homosexuals should not receive them as well." (Based on Reports from Reuters, Associated Press, and our Paris Correspondent.) The Canadian House of Commons voted 124-52 to reject a proposal to extend legal recognition to same-sex marriages. The proponent of the measure, openly-gay Bloc Quebecois member Real Menard, told the French-language newspaper La Presse that the recognition of civil rights for individual lesbians and gay men in Canada without concomitant recognition of couples was "incoherent" and vowed to continue to press this issue. There was no party discipline on the vote, but a future attempt to pass legislation banning anti-gay discrimination by the government, sponsored by the Liberal governing party, is expected to be a party-line vote. A.S.L. Professional Notes The King County (Seattle, Washington) Bar Association's Task Force on Lesbian and Gay Issues in the Legal Profession has published its final report, "In Pursuit of Equality." The 75-page report, accompanied by a 252-page documentary appendix, appears to be the most comprehensive statement to date on the issue of anti-gay discrimination in the legal profession and steps to remedy the problem. The 23-member Task Force was chaired by Scott A. Smith, a partner at Short, Cressman & Burgess in Seattle. To obtain a copy of the report, call the King County Bar Association at 206- 624-9365. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Delaware Supreme Court Dismissed Patient Claims Against Estate of Dentist Who Died From AIDS In a decision issued Sept. 8, the Delaware Supreme Court upheld dismissal of various tort claims against the estate of Dr. Raymond P. Owens, a dentist who died from AIDS on March 1, 1991. Brzoska v. Olson, 1995 WL 558413. However, the court revived a claim of fraudulent misrepresentation, based on allegations by some of Dr. Owens' patients that he had misrepresented his health status to them, while at the same time limiting the scope of potential recovery on those claims after trial. Dr. Owens was diagnosed with AIDS in March 1989. He kept the diagnosis secret and continued to serve his patients. However, his health began to deteriorate severely toward the end of 1990 as he developed lesions and suffered memory loss and weakness. In February 1991, his own doctor recommended that he cease practice, he was hospitalized late that month and died on March 1. Shortly after his death, the state Health Department notified all his patients who had received treatment since his AIDS diagnosis that they should obtain HIV testing. Of the 630 patients who obtained such testing, none received a positive test result. Nonetheless, 38 patients joined in a class action against the doctor's estate, alleging negligence, battery, and misrepresentation. The trial court granted summary judgment to the defendant, and the plaintiffs appealed the battery and misrepresentation claims. Justice Walsh, writing for the court, found that as none of the patients had tested HIV+ or alleged actual exposure to Dr. Owens' infected body fluids, they had not stated an injury, which is an essential element for the tort of battery. The plaintiffs argued that their injury was the fear of developing AIDS (expressed as mental anguish) that they sustained when they learned that Dr. Owens had AIDS while treating them. They also argued that had they known of his health status, they would not have consented to treatment; thus, they sought to premise recovery on the theory that they had been subjected to a nonconsensual offensive touching. The court refused to accept these arguments. Citing statistics showing the very remote possibility that Dr. Owens could have transmitted HIV to a patient (the Health Department found that he always wore gloves and his infection control procedures were "above average"), Walsh wrote that fear of infection in this case "is based on uninformed apprehension, not reality. In such circumstances, the fear of contracting AIDS is per se unreasonable without proof of actual exposure to HIV. In our view, the mere fear of contracting AIDS, in the absence of actual exposure to HIV, is not sufficient to impose liability on a health care provider. AIDS phobia, standing alone, cannot form the basis for recovery of damages, even under a battery theory because the underlying causation/harm nexus is not medically supportable." As to the "lack of informed consent" argument, Walsh asserted that so long as Dr. Owens performed the particular procedures that the patients had agreed to, he had not exceeded their consent. "A physician may be held liable for battery when he or she obtains the consent of the patient to perform one procedure and the physician instead performs a substantially different procedure for which consent was not obtained. A patient's consent is not vitiated, however, when the patient is touched in exactly the way he or she consented. If a health care provider violates his or her duty of care in obtaining the consent of the patient by failing to disclose all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be pleaded in negligence -- not battery." However, the plaintiffs alleged that several of them, noting the doctor's symptoms, had inquired about his health and were specifically assured that he did not have AIDS. Although if true this would constitute an intentional misrepresentation upon which patients relied in consenting to treatment, again the court found that fear of AIDS would not by itself constitute sufficient injury to underlie an intentional tort action. On the other hand, some patients claimed they incurred expenses in obtaining private HIV testing and counseling because they were too embarrassed to go to the Health Department clinic where free testing had been offered. The court remanded this claim for a determination at trial whether these plaintiffs had acted reasonably under the circumstances; if so, they might have monetary claims against the estate. Justice Duffy (who retired after the argument of this case), filed a partial dissent, asserting that the court had misconstrued the law of battery and that the plaintiffs had stated viable battery claims. Reviewing the factual allegations, Duffy asserted that the plaintiffs might reasonably fear exposure to HIV under the circumstances, so that this was not a case of mindless "AIDS phobia" but rather genuine, well-founded fear. Duffy also, consistently, objected to the court's narrow view of the damages that might be obtainable in the misrepresentation claim. A.S.L. Ohio Federal Court Dismisses First Amendment Claims of ACT UP Protesters In Schwitzgebel v. City of Strongville, 1995 WL 529361 (N.D.Ohio, Aug. 28), the court granted defendants' motion for summary judgment on plaintiffs' claim that their First Amendment rights had been violated when they were arrested at a Bush-Quayle presidential campaign rally held on the public commons of Strongville, Ohio, on October 28, 1992. A commotion ensued when plaintiffs, members of ACT UP, held up signs which said "The Government Has Blood On Its Hands!" and "1,500,000 Dead From AIDS. Stop This Monster! ACT UP." Plaintiffs began this action after various misdemeanor charges against them were dropped. In granting summary judgment to defendants, the court relied on the three-part analytical framework set out by the Sixth Circuit in Bishop v. Reagan-Bush '84 Comm., 819 F.2d 289 (1987), which requires 1) that the relevant forum be ascertained, 2) that the nature of the forum, public or private, be determined, and 3) that the justification for exclusion from the relevant forum be assessed against the requisite standard. A central question thus was whether the city had the right to convert an historically public forum into a private forum by issuing a permit that clearly allowed the permittee to control access to the forum. After reviewing the history of inconclusive debate on this subject the court sided with the view expressed in Irish Subcommittee v. Rhode Island Heritage Comm'n, 646 F.Supp. 347 (D.R.I. 1986), that the government could not create a non-public forum within a public forum without destroying the significant character of the public forum. The court concluded that while the city may have intended to turn the public commons into a private forum, it nonetheless remained a "public forum" by virtue of the permit issuance. Consequently, exclusion of plaintiffs was justified for the usual reasons supporting permits: namely the view that permit systems embody the content neutral, narrowly tailored, time, place, and manner regulations that the Supreme Court has long accepted as permissible restrictions on expressive conduct. Quoting extensively from Sanders v. U.S. (D.D.C. 1981), 518 F.Supp. 728, aff'd w/o op. 679 F.2d 262 (D.C. Cir. 1982), the court concluded that the government has a significant interest in guaranteeing that all citizens have the opportunity to participate in events and demonstrations of their own choosing without the interference of counter groups or demonstrators who would be as readily granted permits of their own for rallies which would enjoy the same protection. D.P. HIV Discrimination Judgment Sustained on Appeal An Illinois appeals court upheld a judgment in favor of a cook who was discharged for having HIV. Raintree Healthcare Center v. Human Rights Commission, 1995 WL 505002 (Ill.App.1st Dist. Aug. 25). In 1987, Raintree Healthcare Center hired James Davis to work in its Evanston, Illinois, nursing home. In January, 1988, Davis disclosed his HIV+ status to Raintree's administrator, Burton Behr. The Illinois Administrative code prohibited nursing homes from employing persons suspected of having infectious diseases. Behr made several calls to the Illinois Department of Public Health to ask if Davis could continue working despite his HIV status; the answers were vague but negative. Behr sent Davis home, advising him to get a note from his doctor indicating whether he could work. Davis returned with a note stating that HIV was a transmissible disease, but that he should be allowed to work provided proper precautions were followed. Behr refused to allow Davis to return to work. In February, 1988, Davis filed a claim with the Illinois Department of Human Rights. After investigation, the Department filed suit against Raintree in 1989. Raintree offered Davis another job for comparable pay at its Highland Park facility fifty miles away; he refused because the commute was too long for public transportation. In 1992, an ALJ found that Raintree violated the Illinois Human Rights Act; the ALJ awarded more than $20,000 backpay and interest, plus nearly $30,000 attorneys' fees. Justice Zwick began the majority's review by noting that the ALJ's decision will be upheld if there is competent evidence to support it. The Human Rights Act prohibits discrimination on the basis of a physical handicap, including a determinable physical characteristic of a disease (such as HIV status). Raintree conceded that a prima facie case had been established, but argued that the regulation prohibiting the employment of PWAs in nursing homes provided a legitimate reason for its decision. The court disagreed, upholding the ALJ's rulings that (1) eligibility for employment must be based on individual capacity, not blanket restrictions (2) the regulation applied only to people with full-blown AIDS, not everyone with HIV, and (3) an employer may not rely on a good-faith belief that a decision is justified by a regulation (ignorance of the law is no excuse. . . ). The court also noted that Raintree had presented no evidence as to why the plaintiff could work in its Highland Park facility but not in its Evanston facility, except that the other employees in Evanston knew the plaintiff had HIV. In dissent, Justice Rakowski argued that Raintree tried diligently to comply with laws relating to the employment of PWAs in nursing homes, and had followed the only information available from the relevant state agencies. Justice Rakowski also criticized the majority's distinction between HIV and AIDS in the context of the case, noting that even the plaintiff's doctor had used the two synonymously. O.R.D. Hawaii Law Bars Court-Ordered HIV Test A Hawaii trial court may not order a sex offender to undergo an HIV test as part of a plea agreement, according to a recent ruling by Hawaii's Intermediate Court of Appeals, because the prosecutor did not mention such a requirement in negotiations with the defendant and raised the issue only at the sentencing hearing. In a unanimous decision, a three-member panel held in Hawaii v. Abbott, 1995 WL 499001 (Aug. 23) that a judge may not order HIV testing as a condition of parole, because Hawaii law forbids testing for the AIDS virus without informed consent. Here, "the defendant could not reasonably have expected that the state would request such testing as a condition of probation." Bobby Darren Abbott was charged with three counts of sexual assault in the third degree in June 1992 for knowingly having sex with a person under 14 years old. Abbott pleaded no contest to the first charge in a plea agreement. In return, the two other counts were dropped and the state recommended a sentence of five years probation. The prosecutor reserved the right to ask for a one-year jail term and argue for "other terms and conditions" such as fines and counseling. At the sentencing hearing in October 1992, the state recommended that in addition to five years probation, Abbott serve one year in prison, without credit for five months of pretrial detention. The prosecutor also asked the judge to order Abbott to undergo HIV testing and provide the results to the victim's family. Despite the recommendation of the prosecutor, the judge sentenced Abbott to five years in prison, with credit for time served, and ordered him to undergo an HIV test. Abbott then filed a motion for reconsideration of the sentence and assignment of a new judge, arguing that the state breached its plea agreement. In conducting de novo review, the appellate panel noted that "the touchstone for determining whether a breach of a plea agreement has occurred is whether the defendant has reasonable grounds for reliance on his interpretation of the prosecutor's promise, and whether the defendant in fact relied to his detriment on that promise." Even in cases where the state "technically complies with every term" a higher court may find a breach of the spirit of a plea agreement. In granting the motion for resentencing before a new judge, the Court of Appeals noted that Abbott did not give his informed consent for HIV testing, in violation of Hawaii law. The state also argued that a similar statute authorizes a court to order release of records of an HIV+ person on a showing of good cause by the party seeking release. In rejecting this argument, the appellate panel noted, "Nowhere does that statute authorize the court to order testing, and the state's contention is thus meritless." M.N.S. Federal Jury Awards Damages to Defendant Improperly Tested for HIV A jury in the U.S. District Court for the Eastern District of Pennsylvania awarded $5,100 damages to Peter Walker, who alleged that police had improperly had him tested for HIV when he was apprehended after a scuffle that involved some bleeding. Walker v. Upper Merion, No. 94-4888 (Jury verdict on Aug. 22). Walker's attorney, Alan M. Lerner of the University of Pennsylvania Law School's Legal Assistance Office, said he would ask the judge to order HIV training for the Upper Merion, Pa., police department. AIDS Policy & Law, Sept. 8, p. 4. A.S.L. Eighth Circuit Says PWA Must Go To Prison For Violating Terms of Supervised Release U.S. v. Stephens, 1995 WL 534817 (8th Cir., June 15, 1995), involved Earnest Stephens, a person with AIDS who had received a three-year supervised release sentence following his conviction on counterfeiting and related charges. Stephens appealed the revocation of his supervised release on the grounds that "the court erred in considering his need for medical treatment for AIDS as a factor in revoking his supervised release and imposing a sentence of imprisonment." Stephens missed six probation appointments and failed to submit urine samples, as required under the terms of his supervised release. At the revocation hearing Stephens offered his AIDS, which he said caused him to tire easily, as among the reasons for his failure to keep the required appointments. The record showed that the hearing examiner found Stephens clearly in violation of the conditions of his supervised release, and felt as well that it was in his best interest to be placed in a federal facility where he could receive regular medical attention. In affirming the judgment of the district court, this court relied on 18 U.S.C.A. section 3538(g)(3), which requires the revocation of supervised release for refusal to comply with drug testing imposed as a condition of the release. The court held that it was immaterial that Stephens' need for medical treatment was taken into account, and that it was not deciding whether the partial reliance on the need for medical treatment would be appropriate in a case where the revocation was not clearly mandatory. Because he failed to comply with the terms of his release, his actions were "knowing and willful failure," justifying imposition of the mandatory sentence. D.P. Ohio Court Denies HIV Test to State Prisoner In State ex. rel. Peeples v. Anderson, 73 Ohio St.3d 559, 653 N.E.2d 559 (Aug. 30), the appellant, Peeples, a prisoner in an Ohio state prison, had been attacked by another prisoner and somehow exposed to the attacker's blood. The attacker had tested positive for HIV. Peeples filed a writ of mandamus in state court to compel the warden to provide him with periodic HIV testing, which, he alleged, the warden refused to provide when Peeples refused to make a statement conceding that he was a homosexual or had engaged in other voluntary activities during which he could contract the virus. The lower court dismissed the action for failure to state a cause of action, and Peeples appealed to the state Supreme Court. The Supreme Court affirmed, ruling that while Peeples' complaint did state a cause of action, mandamus would not lie because Peeples had an adequate remedy at law, in the form of an action under 42 U.S.C. sec. 1983, which could provide for declaratory, injunctive and/or monetary relief. Two justices dissented, arguing that the remedy at law was inadequate, as it would be too time-consuming. Peoples needed to know whether he was infected, and so did others, including the prison staff and other inmates with whom he might come in contact. The dissenters stated that Peeples's request was legitimate, inexpensive and not burdensome on the state. S.K. Ohio Appeals Court Finds No Violation of HIV-Consent Law in Accidental Testing Here's a strange one. The John Doe plaintiff learned that he was HIV+, but kept the information secret. He went to the Ohio State University hospital with intense stomach pains and was diagnosed with a kidney stone. The doctor ordered some blood tests. While the nurse was filling out the test requisition form, Doe told her that he was HIV+, urging her to make a notation to inform the lab so that proper precautions would be used in handling his blood. The nurse wrote "HIV+" on the requisition form in a box labelled "other tests." The lab, thinking this was an order for an HIV test, ran the test and reported the positive result to the state Health Department. When Doe found out what had happened, he confronted the doctor, who denied ordering the test. OSU employees told Doe they would investigate the matter, but when nothing was forthcoming, he filed suit against the hospital, alleging a violation of Ohio R.C. 3701.241 et seq., which requires informed consent for HIV testing. Doe v. Ohio State University Hospitals, 1995 WL 559967 (Ohio Ct. App., 10th Dist., Sept. 19). The trial court characterized this as a negligence suit, and found that a reasonable person receiving the requisition would interpret it as a physician's order to perform an HIV test. Since OSU required physicians to obtain informed consent, the lab could reasonably assume that such consent had been obtained. The trial court thus ruled for the defendant, and Doe appealed. The court of appeals, in an opinion by Judge Petree, affirmed, but on different reasoning. It held that this was not a negligence case; rather it was an allegation of breach of the consent statute. However, the enforcement provision of the statute authorizes claims only for "knowing" violations. Doe's complaint failed to claim that anybody had knowingly sought to violate his right to be free of non- consensual HIV testing. The doctor never ordered a test, the nurse apparently did not think she was ordering a test, and the lab gave the requisition form its logical interpretation in light of the circumstances. The court rejected Doe's argument that the statute was violated simply by the fact that he was tested without his consent. Wrote Petree, "This court finds that plaintiff must demonstrate that defendant had actual awareness that R.C. 3071.242(A) had been violated, or, at the very least, plaintiff must establish facts from which knowledge could be inferred." Petree found it apparent that a mistake was made by the nurse, but there was no indication the hospital had "knowingly" violated the statute. A.S.L. Some Viatical Settlement Schemes May Be Subject to Federal Securities Law Regulation U.S. District Judge Lamberth ruled Aug. 30 in Securities and Exchange Commission v. Life Partners, Inc., 1995 WL 517641 (D.D.C.), that the largest "viatical settlement organizer" in the country has violated federal securities laws by failing to register as a broker/dealer and by running afoul of antifraud statutes administered by the SEC. The key issue in the case is whether LPI's product can be labelled a "security" subject to federal securities laws. LPI purchases the right to payment under life insurance policies from people with AIDS who are diagnosed to have a life expectancy of less than two years. LPI then markets fractional interests in the proceeds of those policies to investors, with LPI serving as a middle-man/agent for the investors. Judge Lamberth's analysis is beyond the range of topics normally covered in Law Notes, and the opinion is mentioned here merely to alert those who might have a particular interest in the subject matter so that they can seek out a copy of the opinion. A.S.L. Federal Court Dismisses Harassment Claims by HIV+ Employee In a confusingly oblique unofficially published opinion, U.S. District Judge Frye granted the employer's motion to dismiss various statutory and common law claims brought by William Sexsmith, an employee of Marriott International, Inc., in Portland, Oregon. Sexsmith v. Marriott Int'l, Inc., 1995 WL 545497 (D.Or., Sept. 7). Sexsmith alleged sex discrimination, disability discrimination, wrongful discharge, infliction of emotional distress, and violations of the Portland Civil Code in state court, and Marriott removed the action to federal court under diversity jurisdiction. He claimed that a male supervisor made harassing comments about his sex life, refused to discipline another male employee who allegedly made unwelcome sexual advances to Sexsmith, and retaliated against Sexsmith for making his complaints. All this while the supervisor knew Sexsmith was HIV+ and had been warned by his doctor to avoid stressful circumstances. The court found that the Portland Civil Code was not enforceable in state court when this complaint was filed, that the state tort claims were not valid, thus dismissing all the pendent state claims on Marriott's motion. A.S.L. AIDS Law & Society Notes Presidential politics and AIDS Prevention: The New York Times reported Sept. 13 that Elizabeth Hanford Dole, president of the American Red Cross (ARC) and wife of GOP Presidential hopeful Senator Robert Dole, prevailed on ARC's board of directors to take the unusual step of intervening in the details of an AIDS prevention program devised by ARC's professional staff to reduce the level of sexual explicitness in leaflets, videos and instructional manuals. Some disaffected ARC officials told The Times that the move appeared politically motivated at a time when Sen. Dole is "tilting" rightward in his battle with more right-wing candidates for the GOP 1996 nomination. Official spokespersons for ARC denied that there was any political motivation. The educational efforts in question are being financed with a $5 million federal grant. A joint advisory panel of the National Research Council and the Institute of Medicine of the National Institutes of Health concluded that needle exchange programs can slow the rate of HIV transmission in drug-using populations without stimulating an increase in the number of IV-drug users. Indeed, the panel concluded that needle exchange programs may help in diverting drug users into rehabilitation programs. The panel's report received national press attention during the week of Sept. 18, and Assistant Secretary of Health Philip R. Lee announced that the report would be reviewed for action by the administration. At present, restrictions in federal appropriations measures preclude the use of federal funds to support needle exchange programs. A.S.L. International Notes Experts are predicting that India may be the next major area heavily hit by the AIDS epidemic. Truck drivers who are major customers of prostitutes seem to be spreading HIV at an increasing rate, and studies show the virus is securing a large enough presence for new cases to explode soon. The number of new cases in India has already leapfrogged South Asia ahead of Africa in the past year in terms of new reported cases of AIDS. A recent survey showed that more than 5% of the drivers had HIV infection, more than 90% visited at least one prostitute a week, and 68% never sued a condom. The survey also showed widespread ignorance about AIDS and HIV transmission, not only among drivers but among a majority of the doctors in Bangalore, "often described as India's most technologically advanced city." San Francisco Chronicle, Sept. 2. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS A regional conference on gay and lesbian legal issues will be co- sponsored by the National Lesbian & Gay Law Association, Gay & Lesbian Attorneys of Washington, the Maryland Lesbian & Gay Law Association, Virginians for Justice, and the Marshall-Wythe Gay & Lesbian Law Student Association in Williamsburg, Virginia, on Oct. 20-22, 1995. Unfortunately, the conference flyer reached us too late for inclusion in the September Law Notes, but perhaps late registrants can be accommodated by calling 410-244-0772. The Bisexual, Gay & Lesbian Law Student Association at New York University School of Law will present a day-long colloquium on October 13 at the Law School, 40 Washington Square South, from 9:30 a.m. to 7:30 p.m., titled "We're Here, We're Queer, Now Where Do We Go? - A Critical Look at the Future of the Lesbian and Gay Civil Rights Movement." Speakers include leading legal academics and gay rights movement figures. For information, contact Joshua Kaufman at jpk5948@is2.nyu.edu or call BGLLSA at 212-998-6574. The event is open to the public and admission is free of charge. LESBIAN & GAY & RELATED LEGAL ISSUES: Beasley, Dorothy Toth, Federalism and the Protection of Individual Rights: The American State Constitutional Perspective, 11 Georgia State U. L. Rev. 681 (June 1995) (Ironically, this strongly argued essay by a Georgia appellate judge extolling the ability of state courts to accord greater protection to individual rights under state constitutions than is accorded by the U.S. Supreme Court under the federal constitution fails to note the case of Bowers v. Hardwick [a Georgia case], subsequently repudiated by the Kentucky Supreme Court based on its state constitution, although the author notes many other examples coming from a variety of states). Berger, Raoul, Liberty and the Constitution, 29 Georgia L. Rev. 585 (Spring 1995) (a federalist defense of the Supreme Court's decision in Bowers v. Hardwick). Cordray, Richard, Free Speech and the Thought We Hate, 21 Ohio Northern U. L. Rev. 871 (1995). Falk, Patricia J., The Prevalence of Social Science in Gay Rights Cases: The Synergistic Influences of Historical Context, Justificatory Citation, and Dissemination Efforts, 41 Wayne L. Rev. 1 (Fall 1994). Faust, Beatrice, Child Sexuality and Age of Consent Laws: The Netherlands Model, 5 Australasian Gay & Lesbian L.J. 78 (1995). Gellman, Susan, Hate Crime Laws After Wisconsin v. Mitchell, 21 Ohio Northern U. L. Rev. 863 (1995). Gentles, Jenny, A Legal Remedy for Sexual Injustice, 5 Australasian Gay & Lesbian L.J. 65 (1995). Helscher, David, Griswold v. Connecticut and the Unenumerated Right of Privacy, 15 N. Ill. U. L. Rev. 33 (Fall 1994). Linzer, Peter, The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone, 12 Constitutional Commentary 277 (Summer 1995)(interesting historical background about the famous Footnote 4 in Carolene Products, frequently cited as a major precedent on suspect classifications under the Equal Protection Clause). Miller, Alice M., AnnJanette Rosga, and Meg Satterthwaite, Health, Human Rights and Lesbian Existence, 1 Health & Hum. Rts. 428 (1995). Morgan, Wayne, Queer Law: Identity, Culture, Diversity, Law, 5 Australasian Gay & Lesbian L.J. 1 (1995). Quirk, Brenda Jones, Regulating a Lawyer's Discriminatory Conduct: Constitutional Limitations, 21 Ohio Northern U. L. Rev. 897 (1995). Riggs, Robert R., Punishing the Politically Incorrect Offender Through "Bias Motive" Enhancements: Compelling Necessity or First Amendment Folly?, 21 Ohio Northern U. L. Rev. 945 (1995). Schoechle, Timothy D., Privacy on the Information Highway: Will My House Still Be My Castle?, 19 Telecommunications Policy 435 (Aug. 1995). Size, George G., and Glenn R. Britton, Is There Hate Speech? R.A.V. and Mitchell in the Context of First Amendment Jurisprudence, 21 Ohio Northern U. L. Rev. 913 (1995). Stychin, Carl F., Prohibitions and Promotions: A Comparative Analysis of Legal Interventions, 5 Australasian Gay & Lesbian L.J. 42 (1995). Zavos, Michelle A., Sexual Orientation Law in the 1990s, Trial, August 1995, 27-32. Book Reviews: Allan, James, Out Law: A Legal Guide for Lesbians and Gay Men in New Zealand, 5 Australasian Gay & Lesbian L.J. 93 (1995). Delgado, Richard, Karst: Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion, 93 Mich. L. Rev. 1460 (May 1995). Devins, Neal, Garrow: Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 93 Mich. L. Rev. 1433 (May 1995). Rao, Radhika, Robertson: Children of Choice: Freedom and the New Reproductive Technology, 93 Mich. L. Rev. 1473 (May 1995). Student Notes & Comments: Batterman, Daniel A., Evans v. Romer: The Political Process, Levels of Generality, and Perceived Identifiability in Anti-Gay Rights Initiatives, 29 New Eng. L. Rev. 915 (Summer 1995). Davies, Julia Frost, Two Moms and a Baby: Protecting the Nontraditional Family Through Second Parent Adoptions, 29 New Eng. L. Rev. 1055 (Summer 1995). Grauerholz, Stephanie L., Colorado's Amendment 2 Defeated: The Emergence of a Fundamental right to Participate in the Political Process, 44 DePaul L. Rev. 841 (Spring 1995). Luongo, Kristine E., The Big Chill: Davis v. Davis and the Protection of "Potential Life"?, 29 New Eng. L. Rev. 1011 (Summer 1995). Note, Patriarchy Is Such a Drag: The Strategic Possibilities of A Postmodern Account of Gender, 108 Harv. L. Rev. 1973 (June 1995) (social construction theory comes to the Harvard Law Review). Reuther, Kevin, Queer Rights are Human Rights: Thoughts from the Back of a Cab, 8 Harv. Hum. Rts. J. 265 (Spring 1995). Stewart, Blair, The Works' Outing: The New Zealand Workplace Harassment Case of L v M Ltd, 5 Australasian Gay & Lesbian L.J. 86 (1995). AIDS & RELATED LEGAL ISSUES: Bernstein, Bobbi, Solving the Physician's Dilemma: An HIV Partner- Notification Plan, 6 Stanford L. & Policy Rev. No. 2, 127 (1995). Burris, Scott, Healthcare Privacy & Confidentiality: The Complete Legal Guide, 16 J. Leg. Med. 447 (September 1995) (book review essay). Cavazos, Roxella T., The Application of ERISA and the ADA to Disability-Based Distinctions in Health Insurance, 30 Tort & Ins. L. J. 1045 (Summer 1995). Christensen, Burke A., AIDS and Life Insurance: A Brief History, 134 Trusts & Estates No. 9, 89 (September 1995). Pittman, Larry J., ERISA's Preemption Clause and the Health Care Industry: An Abdication of Judicial Law-Creating Authority, 46 Fla. L. Rev. 356 (July 1994). Stevens, Gail A., AIDS and Drug Misuse, 19 Crim. Jus. Rev. 147 (Spring 1994). Wilcox, W. Bradford, and Sarah Horton, Morality and Needle Exchange: A Debate, 5 Responsive Community No. 3, 71 (Summer 1995). Student Notes & Comments: Bollinger, Robert C., On the Road to Recovery for Emotional Harm: Is the Fear of AIDS a Legally Compensable Injury?, 16 J. Legal Med. 417 (September 1995). Fink, Vance A., Jr., Emotional Distress Damages for Fear of Contracting AIDS: Should Plaintiffs Have to Show Exposure to HIV?, 99 Dickinson L. Rev. 779 (Spring 1995). Miltko, Susan Moriarity, The Need for Professional Discretion: Health Professionals Under the Americans With Disabilities Act, 89 Northwestern U. L. Rev. 1731 (Summer 1995). Recent Cases, Patent Law - Pharmaceuticals - Federal Circuit Upholds Patents for AIDS Treatment Drug, 108 Harv. L. Rev. 2053 (June 1995). Washington-Carter, Pamela, AIDS and Disability-Based Discrimination in Employer-Provided Health Insurance: ADA Imposes Liability for Broken Promises, 20 Southern U. L. Rev. 457 (Fall 1993). Editor's Note: Correction: In reporting on Matter of Michael Lee Parsons, 1995 WL 442587 (Tenn.App., July 27), we stated that Abby Rubenfeld represented the lesbian mother. Actually, Ms. Rubenfeld co- authored an amicus brief that was filed on behalf of the National Center for Lesbian Rights and Tennesseans for Equality. * * * 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. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.