LESBIAN/GAY LAW NOTES ISSN 8755-196-9021 April 1999 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 or aleonard@nyls.edu Contributing Writers: Ian Chesir-Teran, Esq., New York City; Courtney Joslin, Providence, Rhode Island; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York City; Mark Major, Esq., Long Island, New York; Sharon McGowan, Harvard Law Student, Cambridge, Massachusetts; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Dirk Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq., King's College, London, England; Leo Wong, NY Law School Student, New York City. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-918; e-mail: le-gal@interport.net LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1999 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York =20 $50/yr by subscription; Canadian Rate $55; Other International Rate US$60 = =20 N.J. APPELLATE DIVISION GRANTS VISITATION TO LESBIAN CO- PARENT BUT DENIES PETITION FOR JOINT CUSTODY The New Jersey Appellate Division has granted visitation rights to a non-biological lesbian co-parent, but has denied her application for joint custody. V.C. v. M.J.B., 1999 WL 111432 (March 5). The twin children were two years old when the plaintiff and her same-sex wife, who had lived together for approximately four years, ended their relationship. Each of the three judges on the appellate panel issued a separate opinion. A two-judge majority agreed that the plaintiff was a "psychological parent," and that it was in "the best interests of the children" for the plaintiff to be awarded visitation rights.=20 However, all three judges articulated different legal standards for deciding the question of custody, making the precedential value of that portion of the court's decision uncertain at best. Since a majority of the panel did not rule in favor of joint custody, the Family Part's ruling denying the plaintiff's custody application was affirmed. Defendant M.J.B. testified at trial that she had put into motion her plan to bear and raise children long before she first met Plaintiff V.C. in 1992. For example, M.J.B. began recording her daily temperature eight months earlier (so her doctor could track her ovulation schedule), and although her first appointment with her fertility doctor was not until one week after she started dating V.C. in July of 1993, V.C. did not learn about the appointment until the following year. According to M.J.B., she made the final decision concerning whose sperm she would use for artificial insemination, after consulting with many family members and friends, including V.C.=20 When the parties learned in February of 1994 that M.J.B. was pregnant with twins, they made joint plans in preparation for the anticipated family. V.C. and M.J.B. moved into a larger apartment after living together only three months. They executed various estate documents and powers of attorney, naming each other as beneficiary and attorney-in fact. They purchased life insurance policies and opened joint checking accounts. The parties agreed that the children would call M.J.B. Mommy and the V.C. Meema. V.C. regularly attended Lamaze classes during M.J.B.'s pregnancy, and was present in the delivery room on September 29, 1994, when the twins were born. After the children's birth, M.J.B. took three months maternity leave, and V.C. took three weeks vacation. M.J.B. listed V.C. as the children's "other mother" on all medical documentation and other forms. However, M.J.B. insisted at trial that she made the ultimate decisions about which pediatrician and child care facility the couple would use. V.C. testified that all decisions about the children's care were made jointly by the parties. In 1995, M.J.B. and V.C. bought a home together and were married in a commitment ceremony. The parties discussed the idea of V.C. formally adopting the children, but were advised (by someone not identified in the record) that it would be better to wait until the children were older. In June of 1996, they consulted with an attorney, although M.J.B. testified that she never felt entirely comfortable with the idea. Before the adoption process progressed much further, the couple separated. For the next three to four months, the parties took turns living in the house with the children. Eventually, V.C. began spending only every other weekend with the children, but continued to contribute money regularly to the twins' care. In June of 1997, M.J.B. stopped accepting money from V.C. and stopped permitting V.C. to visit with the children. =20 At the time of trial, both parties were involved in relationships with other women. The trial court heard testimony from the V.C.'s mother, whom the children called "grandma," and two of M.J.B.'s co-workers, who confirmed V.C.'s testimony that M.J.B. intended V.C. to be the co-parent of the children. All three witnesses also testified that V.C. played an equal role in raising and caring for the children until the couple split up. The court also heard testimony from two expert witnesses, one called by each party. Surprisingly, both expert witnesses reached the same material conclusions after meeting with the parties and the children: both agreed that the children viewed V.C. as a maternal figure; that V.C. viewed the children as her own; and that the children would be affected by their separation from V.C. =20 However, the experts both concluded that since the children were only 3 years old, and since they had already been separated from V.C. for a year by the time of trial, the children would not suffer any significant long-term adverse effects if V.C. were not awarded joint custody or visitation. After hearing all of the evidence, the trial judge denied V.C.'s application for joint custody, ruling that she lacked standing since her relationship with the children did not rise to the level of "in loco parentis." The trial court based its decision on finding that M.J.B. had decided to become artificially inseminated before she met J.V., and based on its interpretation of the expert testimony that V.C.'s relationship with the children was not strong enough to qualify as a psychological parent. The court concluded that in light of its ruling that V.C. did not stand in loco parentis, it could only consider her application for custody if M.J.B. were found to be an unfit parent, something which the evidence did not support. The trial judge also denied visitation to V.C., ruling that she had established only a "bonded," and not a "parental," relationship with the children. The court concluded that V.C. had not assumed the obligations of parenthood, and that based on the defendant's animosity for the plaintiff, which would be "inevitably passed along to the children," visitation was not in the best interests of the children.=20 V.C. appealed the trial court's judgment. The Appellate Division denied a stay but expedited the appeal. Presiding Judge Edwin Stern announced the judgment of the court, which reversed the Superior Court's ruling concerning visitation, but affirmed the denial of V.C.'s application for joint custody. As in the statutes of many sister states, New Jersey defines a "parent" as a "natural parent or parent by previous adoption." Ordinarily, a third-party non-parent does not have standing to seek custody of a child in New Jersey unless she or he first shows that the child's statutory parent is unfit. However, all three appellate judges reaffirmed the Appellate Division's 1989 decision (_Zack v. Fiebert_, 563 A.2d 58) which granted standing to certain third-parties with close bonds to the children: "Where, as a preliminary matter, the third party is able to show that he or she stands in the shoes of a parent to the child and thus in parity with a natural parent, he or she should be accorded the status of a natural parent in determining the standard to be applied to the quest for custody. In such circumstances, the best interests test should apply." The three judges purported to apply the same two-tier custody test (standing, and the best interests of the child) to the facts of this case, yet each reached a different conclusion. Presiding Judge Stern found that based on the facts presented at trial, V.C. qualified as a "psychological parent" under the relaxed standing rule. However, he affirmed the trial judge's denial of V.C.'s application for joint custody based on his belief that all things being equal, biological parents trump psychological parents under the "best interests" rubric: "We cannot ignore the statute in applying the _Zack_ test. _Zack_ recognizes that a `psychological parent' is different than any other third party seeking custody and does not need to prove `unfitness' of the natural parent. However, in applying the `best interests' test when a `psychological parent' seeks custody, deference must still be given to the statute's definition of a parent and to the statutory policy." Judge Barbara Wecker, who penned the most lesbian-and-gay-friendly opinion of the three judges, agreed with Judge Stern that V.C. qualified as a psychological parent. Wecker deftly took the steam out of M.J.B. and the trial court's charge that since M.J.B. decided to bear children before meeting V.C., V.C. should not be entitled to joint custody: "The relevant question, it seems to me, is not whether M.J.B. would have gone forward with insemination without V.C., but whether she in fact did so fully intending that they would jointly parent the children of this conception. The record unambiguously establishes that the answer to that question is `yes'." Judge Wecker also challenged Judge Stern's decision to deny joint custody to V.C. simply because she is not a biological or adoptive parent: "I agree that the biological relationship is a factor to be considered in making a custody determination, particularly if each party seeks sole custody. However, biology warrants considerably less weight when joint custody is sought by one who is, as Judge Stern and I agree, the other psychological parent to the children." Judge Wecker recommended remanding the case to the trial court to determine V.C.'s application for joint custody under the best interests standard. According to Wecker, this standard was not properly applied by the court below, since the trial court erroneously determined as a threshold matter that V.C. did not qualify as a psychological parent. Judge Dennis Braithwaite, who began his decision by trumpeting that "my viewpoint is not influenced by the parties' homosexual status," ruled that based on the facts presented below, V.C. failed to satisfy her burden to prove that she was a psychological parent to the twins. Braithwaite defined a psychological parent more strictly than Stern and Wecker: "A psychological parent is someone, other than a natural or adoptive parent, who, when removed from a child, will cause that child severe psychological harm." Based on the equivocal expert testimony presented below, Braithwaite concluded that the evidence at best suggested that there was only a "speculative possibility" that the children would suffer severe psychological harm as a result of V.C.'s continued separation from them. Wecker challenged Braithwaite's standard for ignoring evidence of the objective relationship between the petitioner and the child:=20 "Psychological parenthood is a finding based upon the role the person historically has played in the child's life. Neither optimistic or pessimistic predictions of future harm that would result from ending that role can logically define the role itself." Judge Braithwaite responded to this challenge by expressing the fear that individuals who had cared for a child for only a brief period of time would be in a position to qualify as psychological parents under Judge Wecker's definition. Braithwaite opined that "Judge Wecker's definition focuses incorrectly on the role of the parental figure to the child rather than on the relationship of the child to the parental figure." Concerning the issue of visitation, both Stern and Wecker adopted a functional test, which was articulated by the Wisconsin Supreme Court in 1995. Under the test, visitation can be awarded to a third-party "in a child's best interest if the petitioner first proves that he or she has a parent-like relationship with the child, and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent." It is not clear to this author in what way this two-tier visitation test differs substantively with the two-tier custody test adopted by Stern and Wecker. (If the two tests do not materially differ, why not rely on one "best interests of the child" standard for visitation and custody?) However, perhaps because visitation is arguably a less drastic encroachment on a biological parent's rights, and because New Jersey statutes grant standing to non-parents, including grandparents and siblings, to petition for visitation, Stern agreed with Wecker that visitation was in the best interests of the children in this case. Braithwaite disagreed, noting that if a statutory enactment was necessary to give siblings and grandparents standing to seek visitation in New Jersey, legislative action should be necessary to grant standing to other non-parents seeking visitation.=20 Braithwaite's fear was motivated in part by his belief that babysitters, nannies and others would take advantage of a lax standard for who may be awarded visitation rights without statutory authority: "In the absence of an express public policy to the contrary, a parent ought to have the right to decide who maintains a relationship with his children and what is in her best interest. Applying the factors set forth by the Wisconsin Supreme Court, as the majority does here, undermines the rights of all natural and adoptive parents and leads to more litigation concerning the rights of individuals claiming to be parents." Judge Wecker challenged Judge Braithwaite's slippery slope argument: "Suffice it to say that the facts apparent in the record before us, with respect to this plaintiff's relationship with these children could not be established by the average babysitter, nanny or grandparent. Those few persons who can prove a relationship similar to that of the plaintiff with these children should be properly recognized." The plaintiff was represented by Robin T. Wernik of Granata, Wernik & Zaccardi. The defendant was represented by Anne W. Elwell of Elwell and Albino. _Ian Chesir-Teran_=20 * * * * * Following closely in the wake of the above decision, New Jersey Superior Court Judge Katherine Dupuis in Elizabeth, N.J.,=20 ruled March 30 that a lesbian co-parent could have visitation with the two children she had been raising with her former partner, but not joint custody. The _Newark Star-Ledger_ (March 30) did not identify the parties, but did identify the attorneys for the two women, Francine Gargano representing the birth mother of the children and Mary Ann Bauer representing the former partner of the birth mother. The couple in question had a 13-year relationship and split in February 1995. The children, two boys, are now 4 and 7. Gargano stated that her client, who is in a new relationship, has not decided whether to appeal the visitation decision. A.S.L. LESBIAN/GAY LEGAL NEWS=20 Illinois Appellate Court Rejects Challenge to Chicago Domestic Partnership Ordinance The Appellate Court of Illinois issued a decision on March 31 rejecting a legal challenge to the Chicago Domestic Partnership Ordinance. _Crawford v. City of Chicago_, No. 1-98-0920 (5th Div.). The unanimous ruling, given in an opinion by Justice Hartman, turned largely on intricacies of Illinois home rule law. The Chicago City Council passed the Domestic Partnership Ordinance on March 19, 1997. The ordinance provides that domestic partners of city employees "shall be eligible for the same benefits, including but not limited to health coverage, as are available to the spouse of an individual employed by the city of Chicago," and specified the qualifications for coverage. The plaintiffs, a group of Chicago tax-payers, filed suit on May 7, 1997, arguing that the council lacked authority to pass the ordinance, and sought injunctive relief to stop it from going into effect. Circuit Judge Thomas Durkin refused interim relief, and ultimately ruled in February 1998 that the ordinance was validly enacted. In implementing the ordinance, "the City offered health, dental and vision insurance benefits, at favorable rates, to domestic partners of city employees. The City also offered contributory group long term disability insurance. To the date of judgment, only nineteen individuals had been certified as meeting the eligibility standards for domestic partnership under the ordinance." First clearing away procedural underbrush, the Appellate Court upheld Judge Durkin's determination that a challenge to non-health insurance benefits was not ripe at this time. Although the ordinance, by its terms, could conceivably extend to any benefit the city presently affords to the spouses of its employees, the court found that the only benefit on which the City is now spending any taxpayer funds is health insurance, and thus this was the only subject in controversy. "Although it may be prophesied that the City may contemplate granting such benefits at some time in the future, it has not done so at the present time," wrote Hartman. Moving to the summary judgment that was granted to the City and several employee-intervenors (who are represented in the case by Lambda Legal Defense Fund's Midwestern Office, based in Chicago), the court next dealt with the argument that the ordinance is beyond the scope of Chicago's home rule authority. This is a difficult argument to make, however, as the Illinois Constitution of 1970 grants broad lawmaking authority to municipalities, stating in art. VII, section 6(a): "[A] home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." As Hartman noted, this provision "has been interpreted as having the intent that home rule units be given the broadest powers possible." Elsewhere, the Constitution provides in art. VII, section 6(m), that the powers of home rule units "shall be liberally construed." Characterizing the issue in this case as one of "first impression," Hartman found that the ordinance "was designed to protect the health of the City's employees and their domestic partners," and thus came squarely within an enumerated home rule unit power. Further, Hartman observed that in Illinois, unlike many other states, localities are not precluded from legislating on matters that could also be subject to state regulation; if the locality's authority is to be preempted, it must be by an affirmative act of state legislation. Here, the plaintiffs' attempt to paint the ordinance as being preempted by or inconsistent with the state's marriage laws was unavailing, because Hartman would not accept the characterization of the ordinance as an attempt to create same-sex marriage on the local level. "Nothing in the DPO [domestic partnership ordinance] purports to create a marital status or marriage as those terms are commonly defined," wrote Hartman. "Rather, the DPO addresses only health benefits extended to City employees and those residing with them." Hartman found this case "entirely dissimilar" to a recent appellate ruling rejecting an attempt by a surviving same-sex partner to claim an elective share against an estate. "Plaintiffs cite no statutory provision which expressly preempts the City's authority to legislate in the area of its own employee benefits, nor have they referred this court to any statute which prohibits domestic partners from receiving employee benefits in Illinois." Hartman commented that the city has an essential interest in being able to compete effectively in the job market, and thus in retaining the authority to adjust its compensation and benefits to attract qualified employees. Thus, the subject matter of the ordinance was of great local concern. Hartman rejected the plaintiffs' argument that because the definition of marriage is a matter of statewide concern, it would not be proper to allow a city to legislate on the subject, once again rejecting the argument that the DPO has anything to do with marriage or with undermining any state policy to encourage marriage, asserting that the "DPO affects only Chicago's personnel policies; no state policy involving any other locality is either involved or undermined. . ." =20 Finally, the court rejected the authority of _Lilly v. City of Minneapolis_, 527 N.W.2d 107 (Minn.App. 1995), in which the domestic partnership ordinance of Minneapolis was invalidated, pointing out that home rule law in Minnesota is different from Illinois. In Minnesota, implied preemption is favored, while in Illinois, home rule power is presumed to exist in the absence of express state legislative preemption. A.S.L. Medical Students Lose First Round in Litigation Over Partner Rights in University Housing Two lesbian medical students have lost the first round in their battle to be able to live with their same-sex partners in university-subsidized apartments in the Bronx, New York. Ruling on defendant's motion to dismiss in _Levin v. Yeshiva University_, NYLJ, 4/1/99, p.31, col.3 (N.Y. Supreme Ct., New York County), Justice Franklin R. Weissberg found that the plaintiffs had failed to state a claim under the state and local non-discrimination laws or under a state law conferring a right on residential tenants to have an unrelated roommate. Sara Levin and Maggie Jones, both lesbians, are students at Einstein Medical College of Yeshiva University. The medical college is located in the Bronx, New York. Rental housing is very expensive in New York, so the College makes available apartments to students at subsidized rentals well below the market rate.=20 University policy limits occupancy to students and their spouses or dependent children. When Levin and Jones applied to allow their same-sex partners to live with them in university-subsidized apartments, their application was denied. The lawsuit is premised on three theories: that the university's housing policy constitutes discrimination on the basis of marital status, in violation of the New York Human Rights Law and the New York City Human Rights Ordinance, both of which prohibit marital status discrimination; that the university's housing policy has a disparate impact on lesbian and gay students, in violation of the sexual orientation provisions of the City Human Rights Ordinance; and that the policy runs afoul of the state's Roommate Law, which applies to all residential rental housing. (Another issue looming in the case but not relevant on the motion to dismiss was whether any or all of these laws could be used to compel Yeshiva University to change a policy that it would claim effectuates religious dictates, inasmuch as Yeshiva University characterizes itself as an orthodox Jewish institution.) As to the first theory, Justice Weissberg found that the New York Court of Appeals has adopted a limited interpretation of the marital status provision, under which the law cannot be used to challenge policies that discriminate against people because of their non-marital relationships. In _Manhattan Pizza Hut v. Human Rights Appeal Board_, 51 N.Y.2d 506 (1980), the court rejected a challenge to the employer's anti-nepotism policy, under which if employees married each other, one would have to resign from the company. In that case, the court said that the statute prohibited discriminating against somebody because of their status of being single or married or divorced, but did not prohibit discriminating against somebody because their spouse is also an employee of the company, or because of the employee's "relationships." Similarly, in _Hudson View Properties v. Weiss_, 59 N.Y.2d 733 (1983), the court of appeals held that a landlord did not violate the marital status provision by seeking eviction of a tenant because she invited her boyfriend to live with her in her apartment, even though the lease would allow her to invite a spouse to live with her. =20 In both cases, said Weissberg, it was clear that the defendants could take into account the nature of the relationship between the plaintiff and another person without violating the marital status provision. Weissberg rejected the plaintiffs' argument that _Hudson View_'s holding on this point had been overruled by _Braschi v. Stahl Associates_, 74 N.Y.2d 201, the 1989 case in which the court of appeals ruled that a domestic partner could benefit from succession rights to a rent controlled apartment.=20 That was a case of statutory construction, and the term to be construed was "family member." According to Weissberg, _Braschi_ has no necessary connection to the issue whether discrimination against unmarried couples violates the marital status provisions. Ironically, it was the _Hudson View_ ruling that led the New York legislature to pass the Roommate Law, Real Prop. L. sec. 235- f, requiring landlords to allow tenants to have unrelated roommates. While conceding that on its face this law would seem to compel a ruling for the plaintiffs, Weissberg concluded that the legislature never intended by passing this law to preempt the right of colleges and universities to determine who may live in the housing they make available to their students, whether in dormitories or in subsidized apartments for graduate students. =20 Weissberg contended that the housing at issue in this case "is a temporary residence offered only to students at the medical school and made available only so long as the student is enrolled.=20 It is made available as a benefit and convenience to students and is, to that end, offered at below market rates. To maximize the number of students who can take advantage of the benefits of such housing and to maintain its low rates, the college may require not only that the student share the apartment, but that the student share a room with another student whom it alone chooses. . . Under the circumstances, a law which requires that the landlord allow the tenant to reside with a member of his or her immediate family, as well as a friend of his or her choosing, is simply inapplicable." Weissberg also rejected the disparate impact argument under the City Human Rights Ordinance, which prohibits sexual orientation discrimination. Weissberg argued that the university's policy "does not, in fact, have a detrimental impact on a homosexual student's ability to obtain university housing," noting that both Levin and Jones were offered such housing. Weissberg then made the same argument he had advanced in construing the marital status provision: to the extent that Levin and Jones suffered any detriment, it was as members of a couple rather than as individuals due to their sexual orientation. And to the extent they had a quarrel with anyone, it was with the state, for refusing to let same-sex couples marry. "It is hardly discriminatory for a party such as Einstein to recognize the significance of a marriage certificate. Einstein is not responsible for the fact that gay and lesbian students are unable to provide the college with a marriage certificate which validates their relationship with their partner. The plaintiffs' real complaint lies not with the defendants but, rather, with the refusal of the New York State Legislature to sanction same-sex marriages. Any change in policy that has such far-reaching ramifications is for the Legislature, not the courts." The plaintiffs are represented by James Esseks of Vladek, Waldman, Elias & Englehard. A.S.L. Louisiana Sodomy Law Takes a Second Hit In a ruling issued on March 17, Louisiana Civil District Court Judge Carolyn W. Gill-Jefferson found that the La.R.S. 14:89(A)(1), a "crime against nature" statute, is "unconstitutional only insofar as it prohibits non-commercial, consensual, private sexual behavior by adult human beings."=20 _Louisiana Electorate of Gays and Lesbians, Inc. v. State of Louisiana_, No. 94-9260. The finding was unsurprising, inasmuch as the court of appeal to which her decision would be appealed had previously found the statute unconstitutional in a case involving the prosecution of a heterosexual man for engaging in oral sex with a woman in private. =20 This case was brought by New Orleans attorney John Rawls on behalf of the gay rights organization and a group of named plaintiffs (including Rawls himself), advancing a dozen state constitutional theories to challenge the sodomy law, including, in addition to right of privacy, equal protection claims on the basis of sex, physical condition, birth, culture, and religious ideas, beliefs and affiliations, establishment of religion, denial of access to public areas, denial of freedom of assembly, denial of freedom to petition the government for grievances, cruel and unusual punishment, discriminatory legislative intent, and bill of attainder. A non-jury trial was held on October 26-30, 1998. On Feb. 9, the court of appeals issued its ruling in _State v. Smith_, 1999 WL 74614, and Judge Gill-Jefferson's decision issued a month later. Most of the written opinion in the case consists of complete quotations from a long list of other Louisiana statutes that are affected by or rely upon by the sodomy law, and thus were subject to ancillary challenge, and to consideration of the state's argument that the plaintiffs lacked standing to challenge the statute. The court found that plaintiffs had adequately proven "that they do engage in conduct prohibited by the targeted statutes," and that studies by John Penny, a criminologist, showed that "there were at least twenty-eight arrests made in Louisiana pursuant to La.R.S. 14:89(A) for uncompensated oral or anal sex in arguably protected locations such as parked automobiles." The court also found that the plaintiff organization had standing on behalf of its members and others affected by the statute, including married couples as to whom the state conceded that the statute is unconstitutional. =20 Surprisingly, after having listed many of the plaintiffs' constitutional theories early in the opinion, the court focused its analysis solely on the right of privacy challenge. Noting that the Louisiana Supreme Court had previously ruled that the Louisiana Constitution's protection for privacy "affords even more stringent protection of individual liberty than does the Fourth Amendment," Judge Gill-Jefferson accepted plaintiffs' arguments that the statute violated both locational privacy (by criminalizing conduct that occurs in private bedrooms) and personal privacy, by implicating the right of "control over one's body," which she characterizes as "the first form of autonomy." The state sought to rest its defense on the assertion that none of the plaintiffs had actually been arrested or searched in a private place, and that in 1976 the state supreme court had rejected a constitutional challenge to the sodomy law. The court quickly disposed of these arguments, noting the first was only relevant to the standing point, which had already been resolved against the state, and that the second was off the mark because the cited case was decided on federal constitutional grounds. The court concluded that "the state has presented no evidence, much less the required compelling state interest, to justify its intrusion on plaintiffs' constitutionally protected right of privacy." As a remedy, the court declared La.R.S. 14:89(A)(1) unconstitutional, as described above, and also declared unconstitutional the long string of other statutes quoted in the opinion "only as they related to the above specified prohibition of La.R.S. 14:89(A)(1). The court entered a permanent injunction banning enforcement of these statutes "against non- commercial, consensual, private sexual behavior by adults."=20 The injunction runs against the attorney general and all the local district attorneys in the state save one, the prosecutor in Jefferson Parish, who is already under an injunction against such enforcement in a separate proceeding. Although gratified by the ruling, attorney Rawls filed a motion with the court on March 23 seeking a new trial or a revision of the opinion. Rawls' concern is that the opinion disposes of the challenge solely on privacy grounds without expressly ruling on any of the other constitutional theories advanced by the plaintiffs.=20 This might be construed as a ruling, sub silentio, that all the other theories are without merit, and would certainly limit the grounds on which the decision could be defended on appeal, assuming the state will bring such an appeal. (After the decision in February in _State v. Smith_, there was an indication by the state that it would appeal to defend the sodomy law.) It would also limit the precedential force of the ruling as a restraint on the legislature, which might try to enact the sodomy law in a different form. A.S.L. Supreme Court Will Hear University of Wisconsin Student Fee Case On March 29, the U.S. Supreme Court announced a grant of certiorari in _Board of Regents, University of Wisconsin v. Southworth_, 1999 WL 42270, 67 USLW 3496, in which the petitioner seeks review of _Southworth v. Grebe_, 151 F.3d 717, reh. denied en banc, 157 F.3d 1124 (7th Cir. 1998), in which the 7th Circuit held that use of mandatory student activity fees to fund politically-active student organizations violates the rights of students who object to the political activities in question. This case is one of a series of cases instigated by right-wing litigation groups seeking to defund progressive and left-wing student organizations at colleges and universities. The cases date back to the 1970's, when public interest research groups (PIRGs) began to spring up at colleges, inspired by the work of Ralph Nader, seeking to involve students in consumer and environmental activism. Lower federal courts and state courts have issued a variety of decisions going in different directions on the question whether individual students who disagree with the positions taken by particular student groups suffer a 1st Amendment deprivation of freedom of speech when student activity fee money is used to fund such groups. In _Southworth_, a small group of conservative self-styled Christian students brought suit against the University of Wisconsin, seeking a declaration that their rights were violated by student fee funding awarded to a long list of groups, including two lesbian and gay groups and an AIDS-services group, as well as the campus women's center which engages in counseling and advocacy on reproductive rights and abortion. The district court and a majority of the 7th Circuit accepted the plaintiffs' arguments, and ordered the University to come up with a system for determining the portion of each student's activity fee attributable to particular groups and a mechanism for students to elect, in advance, not to support particular groups and not to be charged that proportion of the activity fee. =20 Dissenting from the en banc 7th Circuit decision, four judges accepted the University's argument that student activity fees fund a public forum in which diverse groups are encouraged to participate as part of the academic environment of the campus, and that individual students had no particular 1st Amendment injury when some of the funded groups take positions with which the students disagree. The Court did not grant cert. on all the questions posed by the University as petitioner, limiting the grant of review to the following question: " Whether the First Amendment is offended by a policy or program under which public university students must pay mandatory fees that are used in part to support organizations that engage in political speech." Lambda Legal Defense and Education Fund represents, as amicus curiae, one of the lesbian and gay student groups targeted by the plaintiffs in this case, and is also representing several student groups targeted in a similar lawsuit currently pending against the University of Minnesota. A.S.L. Surviving Lesbian Partner Wins Right to Rent-Controlled Apartment In a decision published in the _New York Law Journal_ on March 24, Judge Bruce Kramer of the Civil Court of the City of New York found that a lesbian domestic partner had succeeded to the rent-controlled tenancy of her deceased life-partner. _Adler v. Harris_, N.Y.L.J., 3.24.99, p.29, col.6. In New York, pursuant to the Court of Appeals decision in _Braschi v. Stahl Associates_, 74 N.Y.2d 201 (1989), non-traditional family members (i.e., any other person residing with the tenant who can prove emotional and financial commitment and interdependence between such person and the tenant) may succeed to the tenant's rent-controlled or rent-stabilized tenancy provided they can prove they lived in the apartment with the tenant as their primary residence for the two-year period preceding the tenant's death. In this case, Judge Kramer found that the respondent, Ms. Harris, had met the former tenant of the apartment, Ms. Blaine, in 1965.=20 Harris moved in with Blaine in 1967 and was still living there when Blaine died in 1996. Blaine, a noted artist, was openly lesbian and her obituary in the _New York Times_ described Harris as Blaine's companion. Moreover, the couple shared joint bank accounts and credit cards. The landlord sought to evict Harris from the rent-controlled apartment, claiming that Harris actually resided elsewhere in New York City, maintaining a rent-stabilized apartment at 294 West 92nd Street. The landlord claimed that since both rent control and rent stabilization require the tenant to occupy the apartment as their primary residence, the other rental was dispositive of the issue of whether Blaine's apartment was Harris's primary residence. On cross-motions for summary judgment, Judge Kramer noted that the determinative factors in its accession case are: 1) Longevity of the relationship; 2) Sharing of household and other necessary expenses; 3) Intermingling of finances as evidenced by joint ownership of bank accounts, personal and real property; credit cards; 4) engaging in family type activities, jointly attending family functions, and holding out publicly as family members; 5) formalizing of legal obligations, intentions and responsibilities to each other by executing wills naming each other as executor and/or beneficiary, power of attorneys and health care agents and filing a domestic partnership declaration; 6) performing family functions, such as caring for each other's extended family members, and/or relying upon each other for daily family function; and 7) any other pattern or behavior that evidences the intention to create a long term, emotionally committed relationship. Kramer noted, however, that these factors, although helpful, are not dispositive of whether the relationship entitles the partner to succession. Citing _E. Tenth Street v. Goldstein_, 154 A.D.2d 142 (1st Dep't 1990), the court stated: "the intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in a reality of family life." Judge Kramer found that the overwhelming evidence produced evinced the long term and loving relationship between Blaine and Harris.=20 Moreover, Blaine named Harris executor of her estate and bequeathed the majority of her estate, including a vacation home in Massachusetts, to Harris. As to the rent-stabilized apartment maintained elsewhere in New York City by Harris, Kramer noted that the primary residence requirement of the Rent Stabilization Law would not bar Harris from succeeding to Blaine's apartment merely because she maintained a rent stabilized apartment elsewhere.=20 Harris claimed that she rented the other apartment solely for use as an art studio, and provided affidavits from the building superintendent and the landlord to that effect. The failure to maintain the other apartment as her primary residence merely abrogates the tenant's right to a renewal lease there, but is not dispositive of where they primarily reside. =20 After reciting the above facts, the court denied the landlord's motion for summary judgment and granted Harris's motion for summary judgment, finding that she had succeeded to Blaine's rent- controlled tenancy, and awarded possession of the rent-controlled apartment to Harris. _Todd V. Lamb_ N.Y. Trial Court Refuses to Dismiss Forcible Sodomy Claim Against Home Health Care Attendant on Complaint by Quadriplegic Client J.P. Orda was indicted for first degree sodomy and first degree sexual abuse on the complaint of A.E., a quadriplegic client of a home health care agency for which Orda works as an attendant.=20 _People v. Orda_, NYLJ, 4/1/1999, p.32, col.1 (N.Y.Sup.Ct., Bronx Co.). Orda moved to dismiss the indictment, claiming the facts alleged did not constitute "forcible compulsion" required by the statute. According to A.E., he is a quadriplegic, unable to move from the neck down and requiring assistance to change clothes, etc. A.E. claims that while Orda was changing his clothes, A.E. asked him to adjust the condom catheter attached to his penis. As the catheter was being removed, A.E. experienced an "involuntary erection.=20 At this juncture," wrote Justice Massaro, "the complainant alleges that Defendant made an unwelcome remark about his state of arousal, to which complainant replied, `[Y]ou keep talking to me like this, I=FEm going to call the supervisor.=FE Allegedly, Defendant then placed his mouth on the complainant=FEs penis. Mr. E. tells us that lying on the bed, lacking any ability to move, he could only scream to his neighbors for help, all the while demanding that Defendant stop the unwanted activity. He testified that he spit at Defendant, causing Mr. Ordar to remark, `[I] don=FEt care, spit in my face.=FE At the end of this alleged episode, the complainant stated that he was placed back in his wheelchair. His demand for a telephone was ignored; likewise his order that Defendant leave the apartment immediately. Mr. Orda, he testified, informed him that he would leave only when the relief home health care attendant arrived at shift=FEs end. Further, he testified that he was threatened: `[I]f I report him. . . he was going to do something to me outside,=FE but expressed no fear." The court determined that these circumstances, if proven, would constitute forcible compulsion, even though the facts did not come squarely within the statutory definition or the situations described in prior cases. Tracing the history of legislative treatment of this issue, Massaro showed that the focus of legal scrutiny has shifted "onto the conduct of the attacker and away from the level of resistance offered by the victim, the traditional standard inherited from the common law." Compulsion may come from the use of physical force, or by a threat of force. Orda argued that he never used physical force or threatened to use force to compel A.E. to submit to his oral ministrations, but Massaro noted a statement by the Appellate Division, 1st Department, in a 1992 case, that "Forcible compulsion can be established by evidence that a defendant used his superior age, size and strength to prevent the victim from escaping, and to compel [the victim] to have sex. . . with him." _People v. Roman_, 179 A.D.2d 352 (1st Dept. 1992). Also, Massaro found that the situation as described by A.E. was "inherently coercive." However, Massaro noted that the statutory definition of "physically=20 helpless" " deserves reconsideration" inasmuch as the requirement at present "is not satisfied by an inability to move one=FEs body where the victim is able to protest verbally."=20 See NY Penal L. sec. 130.00[7]. Clearly, the statutes were not written with this situation directly in mind, but nonetheless Massaro concluded that the indictment should stand. "If accepted as true, the finder of fact could conclude, beyond a reasonable doubt, that Defendant engaged in an objectionable sexual act by means of forcible compulsion, in that he used physical force to compel said act." A.S.L. 8th Circuit Reverses Judgment Against School District for Same-Sex Sexual Harassment Under Title IX In a second appeal from the district court, the U.S. Court of Appeals for the 8th Circuit in reversed a judgment against a school district and school officers in their official capacity under Title IX. _Kinman v. Omaha Public School District_, 1999 WL 148090 (Mar. 19) (Kinman II) The case arose out of a sexual relationship between a former student, Janet Kinman, and one of her high school teachers, Sheryl McDougall. The sexual relationship began the summer of 1989, between Kinman's junior and senior year. The district was made aware of the relationship in October of 1989. After receiving this information, the district removed Kinman from McDougall's study hall. The sexual relationship between the two temporarily ceased after this action. The relationship resumed following Kinman's graduation in the spring of 1990. When the district was notified that the two had resumed contact, it investigated the nature of the relationship. After the district confirmed the sexual nature of the relationship, McDougall was terminated for violating the district's policy prohibiting teachers from engaging in sexual relationships with former students within two years of graduation. In addition, McDougall's teaching license was revoked in 1992.=20 Kinman brought suit under 42 U.S.C. sec. 1983 and Title IX against the district, and school officials and McDougall in their individual and official capacities. In _Kinman v. Omaha Public School District_, 94 F.3d 463 (8th Cir. 1996) (Kinman I), the 8th=20 Circuit affirmed a grant of summary judgment for the district and school officials on the sec. 1983 claim on the ground that the evidence did "not support a finding of either deliberate indifference or tacit authorization on the part of school=20 officials, or of a pattern of persistent and widespread unconstitutional practice." The court remanded the suit on the Title IX claim to be examined under a Title VII-like "knew or should have known" standard of liability. On remand, the jury found in favor of the plaintiff on her Title IX claim against the district and school officials in their official capacities. The district and the school officials appealed, and the plaintiff cross-appealed, arguing that the district court erred in failing to grant her motion for default judgment against McDougall on plaintiff's sec. 1983 claims.=20 In a unanimous opinion written by Circuit Judge Wollman, the 8th=20 Circuit declared that, in light of an intervening change in the law, it was "compelled to reverse the judgment" in favor of the plaintiff on the Title IX claims. The jury below had found for the plaintiff based on a "knew or should have known" standard of liability. While the second appeal was pending, however, the Supreme Court, in _Gebser v. Lago Indep. Sch. Dist._, 118 S. Ct. 1989 (1998), clarified the standard for school district liability under Title IX. The Supreme Court rejected the "knew or should have known" standard, and instead held that "a plaintiff in a Title IX case may not recover against a school district without first showing that a district official with the authority to address the complained-of conduct and take corrective action had actual notice of the harassing behavior and failed adequately to respond." Given that the Kinman I court had held that the school district's=20 response could not be characterized as constituting deliberate=20 indifference, the Kinman II court held that application of the standard enunciated in Gebser entitled the district and the school officials to judgment as a matter of law. Following the remand of Kinman I, the district court denied plaintiff's post-trial motion for a default judgment against McDougall in her individual capacity under sec. 1983 and Title IX as moot, stating that "[j]udgment ha[d] already been entered by the court against Sheryl McDougall in her official capacity," and that "liability does not lie under Title IX against persons in their individual capacity." On plaintiff's cross-appeal, the Kinman II court affirmed the district court's denial of the sec. 1983 claim based on a violation of Title IX. The Kinman II court stated that it agreed with the decisions of other circuits holding that "school officials may not be sued in their individual capacity under Title IX * * * because they are not grant recipients." (Title IX jurisdiction is premised on institutional receipt of federal financial assistance.)=20 The Kinman II court, however, reversed the denial of plaintiff's sec. 1983 claim against McDougall based on violations of the Fourteenth Amendment. Explaining that the court had recently noted that due process violations have been found when state actors inflict sexual abuse on individuals, the court concluded that "Kinman stated a valid cause of action against McDougall and that the district court should have considered her motion for entry of default judgment on the merits." _Courtney Joslin_ 7th Circuit Avoids Interesting Post-_Oncale_ Same-Sex Harassment Issues Drawing back from an opportunity to consider whether homophobic harassment in the workplace may violate Title VII of the Civil Rights Act of 1964's ban on sexual discrimination, a panel of the 7th Circuit Court of Appeals affirmed the summary judgment in favor of the employer in _Shermer v. Illinois Dept. of Transportation_, 1999 WL 148034 (March 19). According to the opinion by Circuit Judge Flaum, plaintiff James Shermer alleged he was subject to hostile environment sexual harassment because his male supervisor "repeatedly made sexually offensive reamrks about Shermer in his presence and in the presence of other employees. These alleged remarks related to Shermer engaging in sexual acts with men. The record contains no evidence elaborating on the nature, frequency or severity of these remarks." Shermer's case was one of many around the nation that was put "on hold" by the trial judge pending the Supreme Court's ruling in _Oncale v. Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998), in which the Court resolved a circuit split by ruling that same-sex workplace harassment could be actionable under Title VII, provided the plaintiff can show that the harassment was motivated by the sex of the victim. In this case, Shermer contended that he had satisfied the requirements specified by the Supreme Court in _Oncale_ because the claimed harassment was evidence of sexual stereotyping and because the comments were particularly offensive to him because he is a man. While subtly implying that neither of Shermer's theories held water under Title VII, Flaum's opinion rests its affirmance of the summary judgment on the more prosaic ground that Shermer's complaint is void of the kind of detail necessary to make out a sexual harassment case, failing to specify the frequency and context of the supervisor's remarks. Flaum found Shermer's factual allegations to be "so completely lacking in detail that they tell us nothing about the incidents of harassment or Trees' [the supervisor's] alleged motivation in making the offensive comments. . . Given this evidentiary failure, the district court was correct when it determined that Shermer did not present evidence that Trees harassed him because of his gender." A.S.L. Mississippi Supreme Court Endorses Peeping Toms In an outrageous 5-4 decision that drew two dissenting opinions, the Mississippi Supreme Court affirmed the dismissal with prejudice of an invasion of privacy claim brought by a lesbian against the ex-husband of her lover who photographed the plaintiff in a semi-nude state through her bedroom window without her consent. _Plaxico v. Michael_, 1999 WL 17462 (March 31). =20 Mr. and Mrs. Michael were divorced and Mrs. Michael was awarded custody of their young daughter. Mrs. Michael and daughter continued to live in the cabin that had previously been rented by Mr. Michael as the family home prior to the divorce. Sometime after the divorce, Ms. Plaxico moved in with Mrs. Michael. Mr. Michael then heard rumors that his ex-wife was engaged in a lesbian affair with Ms. Plaxico. Mr. Michael decided to file an action seeking a change of custody of his daughter, based on this new information, but felt he had to have some proof before his action could be successful. =20 One night in June 1993, he slipped up to a window of the cabin through which he "witnessed Plaxico and his former wife having sexual relations. He left to retrieve a camera from his vehicle.=20 After doing so, he returned and took three (3) photographs of Plaxico, who was sitting in bed naked. However, the bed covers covered her from the waist down." Michael delivered the pictures to his attorney and then filed an action for modification of custody. The pictures were revealed to Mrs. Michael=FEs attorney in response to discovery requests. The Chancellor granted Mr. Michael custody in the proceeding. Plaxico sued for invasion of privacy, specifying the particular tort of intentional intrusion upon seclusion and solitude. She testified that she and Mrs. Michael were lovers. The circuit court dismissed the action with prejudice, ruling that because he was motivated solely by concern for his daughter=FEs welfare, Mr. Michael was qualifiedly privileged to engage in conduct that would be otherwise tortious; the court ordered Plaxico to pay court costs of the proceeding but made no award of attorneys fees. Plaxico appealed. Writing for the court, Justice Smith found that based on Mississippi precedents, in an action for intentional intrusion upon solitude or seclusion, "a plaintiff must meet a heavy burden of showing a substantial interference with his seclusion of a kind that `would be highly offensive to the ordinary, reasonable man, as the result of conduct to which the reasonable man would strongly object.=FE" (The doubled-quoted language is from Restatement 2nd of Torts, sec. 652B, comment d.) "Further, the plaintiff must show some bad faith or utterly reckless prying to recover on an invasion of privacy cause of action." Publication to a third party is not required as an element of the tort. In this case, Smith asserted that Plaxico failed to prove all the elements of the claim because "we conclude that a reasonable person would not feel Michael=FEs interference with Plaxico=FEs seclusion was a substantial one that would rise to the level of gross offensiveness as required to prove [the tort]." Smith based this assertion on the contention that "parents have a predominant and primary interest in the nurture and care of their children." Characterizing the relationship between Mrs. Michael and Plaxico as an "illicit lesbian sexual relationship," Smith gave preclusive weight to Mr. Michael=FEs contention that he was solely motivated by concern for his daughter=FEs welfare in doing what he did. "Michael believed that he took these pictures for the sole purpose to protect his minor child. Although these actions were done without Plaxico=FEs consent, this conduct is not highly offensive to the ordinary person which would cause the reasonable person to object. In fact, most reasonable people would feel Michael=FEs actions were justified to protect the welfare of his minor child." For Smith to make such an assertion in a case decided 5-4 is patently absurd, of course. Assuming he would concede that all the members of the Mississippi Supreme Court are reasonable people, and that at least four of them disagreed with this conclusion, how could he assert that no reasonable person would object to what Michael had done? Chief Justice Prather and Justices Banks, Sullivan and McRae dissented, with opinions by Banks and McRae. Wrote Banks, "I disagree both with the premise and the conclusion. . . In my view, peeping into the bedroom window of another is a gross invasion of privacy which may subject one to liability for intentional intrusion upon the solitude or seclusion of that other. . . The trial court found refuge in what it found to be a qualified privilege to see to the best interest of a child. Neither rumors concerning an ex-wife=FEs lifestyle nor a parent=FEs justifiable concern over the best interests of his child, however, gave Michael license to spy on a person=FEs bedroom, take photographs of her in a semi-nude state and have those photographs developed by third parties and delivered to his attorney thereby exposing them to others. While it is not my view that the publication to others is necessary for tort liability here, I make reference to it to demonstrate the highly offensive nature of the behavior here involved. . . In another context, we have observed that `the end does not justify the means. . . Our society is one of law, not expediency. This message must be repeated at every opportunity. . .=FE I regret that today=FEs majority here does not follow these worthy ideals." All the dissenters joined Banks=FE opinion. In a separate dissenting opinion also joined by Justice Banks, Justice McRae wrote: "While the majority did not reach the issue, it impliedly affirms the lower court=FEs finding that Michael had a qualified privilege to take the semi-nude photographs of Plaxico to obtain information helpful to him in his custody battle with his former wife. Ms. Plaxico, the paramour of Michael=FEs ex- wife, however, was not a party to the custody proceedings. As the majority points out, it matters not whether Michael=FEs former wife was involved in a lesbian or a heterosexual relationship. Michael was not at liberty to peek in the women=FEs bedroom window, an act that can only be characterized as voyeuristic. Nor was he at liberty to take photographs of Plaxico and share them with his attorney. At best, only pictures of his former wife could possibly be characterized as helpful to Michael=FEs case. As to Plaxico, any privilege allowed Michael is misplaced." A.S.L. Federal Court Denies Habeas in Manslaughter Conviction With a Gay Angle A federal district court upheld the first degree manslaughter conviction of Jimmy Dale Smith, who asserted that he acted out of a fear of "contracting AIDS" and fear and disgust "by the idea of homosexual activity." Smith was convicted of two counts of manslaughter in the deaths of Robert Grecz and Jay Fiederlien in Glen Cove, N.Y., in April 1992, as well as several weapons possession counts. The N.Y. Appellate Division vacated one of the manslaughter convictions due to a jury charge error by the trial court, but sustained the others with lengthy prison terms.=20 Smith sought a writ of habeas corpus from the federal court.=20 _Smith v. Senkowski_, 1999 WL 138903 (E.D.N.Y., March 10).=20 According to the Smith's account of events, he went to Glen Cove to pick up $70,000 in antique toys (that he had already paid for) from Grecz and Fiederlien on April 11, 1992. Smith stayed at Grecz's home while waiting for the toys to be delivered. After four days with no delivery, Smith prepared to go back to Texas and contact the authorities. According to Smith, Grecz took Smith's gun from the bedroom closet and held the gun to Smith's head while Fiederlein stabbed Smith with a syringe that Smith believed Grecz had used to inject heroin. Smith was then dragged to the bathroom, where Grecz gave the gun to Fiederlien, stripped and demanded that Smith try to give him an erection manually. This failing, Fiederlien then tried to put his penis in Smith's mouth. When Smith refused, Fiederlien hit Smith and left the bathroom. Smith grabbed the gun, which was left on the bathtub. When Grecz "lunged" at him, Smith shot him and shot him again when he tried to stand. As he was leaving the house, Smith heard a noise and saw Fiederlien laying in the bedroom with a knife near him.=20 When Fiederlien moved, Smith emptied the gun in him and threw the gun in the bathtub. He then returned his rental truck and went to the airport. A defense psychiatrist testified that Smith was acting out of "extreme fear and terror" due to his fear of "contracting AIDS" from the syringe and because of his fear and disgust of homosexual activity. A prosecution psychiatrist testified that Smith's behavior was consistent with anger over "a failed business deal." The jury evidently accepted the "extreme emotional disturbance" defense and convicted him of two counts of 1st degree manslaughter. Seeking habeas corpus, Smith alleged several errors, including that the judge did not allow testimony as to his sanity, which District Judge Nina Gershon rejected. She found that even if there was error in limiting the testimony, it was harmless because Smith never properly asserted an insanity defense. _Daniel R Schaffer_=20 Illinois Appeals Court Confirms Conviction in Gay-on-Gay Murder=20 The Appellate Court of Illinois, 2nd District, rejected several challenges to the conviction of Louis Rozo for the murder of Christy Shervanian, both gay men, allegedly motivated by sexual jealousy. _People v. Rozo_, 1999 WL 160565 (March 24). The opinion for the court by Justice McLaren does not contain a clear narrative of how Rozo murdered Shervanian, but in the course of ruling on Rozo=FEs various claims on appeal, McLaren paints a picture of a triangular situation in which Rozo was upset because his boyfriend at the time of the murder, Rudy Zink, had continued to have a friendly relationship with Shervanian, with whom Zink had formerly been romantically involved. =20 At trial, the state produced Zink as a witness, and Zink testified both about his recent relationship with Rozo and his past relationship and continued friendship with Shervanian. Rozo testified in his own defense and denied being "a homosexual." In rebuttal, the state introduced as evidence a dildo found during a search of Rozo=FEs apartment. The state also introduced evidence tending to link Rozo with an arson attempt at Shervanian=FEs house a few months prior to the murder and the placement of a bomb on Shervanian=FEs van. =20 On appeal, Rozo claimed that the trial court erred in allowing admission of evidence about his sexual orientation; the trial court denied a motion in limine seeking to prohibit such testimony.=20 McLaren found that Rozo=FEs sexual orientation was directly relevant to the prosecution=FEs theory of the case, which was that the murder was motivated by Rozo=FEs sexual jealousy. "Here, the state was attempting to prove that a love triangle connecting defendant, Shervanian, and Zink was the motive for the slaying of Shervanian.=20 As all three members of the purported triangle were male, the sexual orientation of each member, including defendant, was relevant and material to the State=FEs case." However, McLaren found that introduction of the dildo in evidence was improper. "There was no proof adduced at trial that a dildo tends to prove sexual preference, either homosexual or heterosexual. The dildo had no probative value, and its introduction was inflammatory." But the court found that introduction of the dildo was not so inflammatory as to deny Rozo a fair trial. "The dildo was of such minor consequence in the evidence in this case that we conclude that the error in its use as evidence was harmless and does not require reversal of defendant=FEs convictions." The court also rejected Rozo=FEs claims that the trial court erred in allowing expert witness that tended to confirm his tie to the bombing attempt, and all testimony concerning the arson and the bombing attempt. While evidence of "other crimes" is sometimes precluded on the theory that it tends to prejudice the defendant without being probative on the issue of whether the defendant committed the crime that is charged in the case, the court found that its introduction in this case was appropriate: "We conclude that the court did not abuse its discretion in allowing the introduction of evidence of other crimes. The evidence of defendant=FEs participation in these crimes is more than mere suspicion, especially when considering that the murder and the other crimes all occurred within a 49-day span. The evidence suggests that defendant was involved in these crimes, all against the same victim." However, the case had to be remanded for resentencing because the trial court inappropriately sentenced on multiple convictions arising from the same act, in violation of the Illinois Criminal Code. A.S.L. Puerto Rico Sodomy Challenge Survives Dismissal Motion In _Sanchez v. Commonwealth of Puerto Rico_, Puerto Rico Superior Court Judge Carmen Rita Velez Borras denied a motion by the government to dismiss a challenge to the commonwealth=FEs sodomy law, finding that the existence of the statute, together with threats by government officials to enforce it, has a "chilling effect" on sexual expression and relationships. The court also concluded that the ACLU has standing to "defend the rights of those of its members who have been participating in conduct punishable" under the challenged statute. The March 5 opinion in this ACLU lawsuit was issued in Spanish; translations of excerpts can be read on-line at . A.S.L. Criminal Litigation Notes The Tennessee Court of Criminal Appeals has upheld the conviction of Jeffrey Pitts, a former employee of Buffalo River Services, an organization employing mentally disabled people, on charges that Pitts committed sexual battery on a client of the agency. _State v. Pitts_, 1999 WL 144744 (March 18). The complainant, D.Q., was 43 years old at the time of the trial.=20 Although he could write his name and was able to testify in court and stated that he felt the conduct in which he was engaged with Pitts (oral sex) was "wrong," the court rejected Pitts=FE argument that the sexual activity was consensual and thus not subject to criminal prosecution in light of _Campbell v. Sundquist_, 926 S.W.2d 250 (Tenn.App. 1996), a case holding the Tennessee law against oral sex unconstitutional as applied to consenting adults. Noting that a qualification to be a client of the agency was an IQ below 69, the court found that the sexual activity alleged by D.Q. was non-consensual. Pitts had denied engaging in the conduct, contending that he had never been alone with D.Q. in a car, contrary to D.Q.=FEs allegations that Pitts forced him to have oral sex during a car trip.=20 Kanawha (West Virginia) Circuit Judge Jim Stucky sentenced Robert Bowers III to 60 years in prison for an August 1997 assault on William Wilder, a traveling salesman characterized as "bisexual" in a report in the _Charleston Gazette_ (March 30). Bowers told the court that he was forced to beat up Wilder because Wilder "imposed his unwanted sexual advances upon me by fondling my privates. I attacked Mr. Wilder essentially because he placed me in an awkward situation. I am not a homosexual and i do not appreciate homosexuals trying to force their perversion upon me. I therefore reacted violently." Judge Stucky rejected this attempt to justify violence, asserting that Bowers and his co-defendant, Charles Frye, who turned state=FEs evidence and received a ten-year sentence, selected Bowers as "a perfect victim because you believed that no matter what you did, Mr. Bowers would not have the ability or desire to report those actions to law enforcement authorities. This crime has no explanation or justification in the court=FEs mind. It is my responsibility in sentencing you to attempt to send a message to you that such behavior, such hatred, such violence on any citizen will not be tolerated in Kanawha County." A Utah jury found Todd Koolmo guilty of manslaughter in the murder of his wife, apparently accepting his defense to a 2nd-degree murder charge that he was under severe emotional distress because his wife was engaging in lesbian affairs and had told him that if he didn=FEt like that, he could leave the relationship. Koolmo is set to be sentenced by Utah 3rd District Judge Robert Hilder on April 26; the maximum sentence is 15 years. _Deseret News_, March 10. =20 Juan Chavez pleaded guilty to murdering five gay men by strangulation a decade ago because he "hated homosexuals and had to `stop them,=FE" according to the _Los Angeles Times_, March 17. Deputy District Attorney Michael Duarte told the _Times_ that the victims=FE families and the police agreed that he should negotiate a guilty plea that would produce a life sentence rather than go for a conviction and death penalty, primarily due to the weak state of the evidence in these old cases. Chavez told the police that he killed the men to teach them a lesson: "They pick people up. They don=FEt let them know that they are sick, and a lot of people be dying because of them. So I better, you know, stop them." Chavez told police that he met his victims while seeking to buy drugs in various well-known L.A. spots; the victims would offer him money for sex; he would go home with them and, as they disrobed, take out a knife and surprise them, then strangle them with a rope or a piece of clothing after tying their hands and feet.=20 In all of the cases, Chavez would steal cash, jewelry, or electronics, and sometimes cars, making the murders look like they were motivated by theft. A.S.L. Civil Litigation Notes The vast, right-wing conspiracy strikes again. The Alliance Defense Fund, of Scottsdale, Arizona, a non-profit organization dedicated to "Christian legal causes," is funding a lawsuit challenging the domestic partnership policy in Vancouver, Washington. Roni Heinsma, a local taxpayer, represented by attorney Donald Esau, filed suit late in February, contending that the city lacked authority to adopt the policy, which extends employee benefits eligibility to the same and opposite-sex domestic partners of city employees. The policy was established last May by City Manager Vernon Stoner, and 28 employees have signed up their partners for the benefit program. According to a report in _The Columbian_, Feb. 26, the Alliance Defense Fund is supporting ten such lawsuits challenging domestic partner policies around the U.S. Jefferson County, Colorado, District Judge Christopher Munch has urged lesbian co-parents Leanne Bueker and Kelly Cunningham Naylor to work out an agreement that would split their 9-year old daughter=FEs time between Albany, N.Y., where Naylor is now living with her husband, an architect, and Colorado, where Bueker remains.=20 Last year, in an unprecedented ruling, Munch awarded joint custody of the child, born in 1989 through in-vitro fertilization at a time when Bueker and Naylor were in a committed relationship. Munch said that if the lawyers for the women can=FEt come up with an agreement by May 6, he will issue a temporary order to cover the summer. _Bueker v. Cunningham_, No. 97-DR-861. _Denver Post_, March 7 & 19. In a pending challenge to the Broward County, Florida, domestic partnership ordinance, Circuit Judge Robert Andrews rejected a petition from plaintiff Wally Lowe to issue an order stopping the ordinance from going into effect. Still pending before Andrews is a motion by the county for dismissal of the suit, contending that Lowe does not have standing in the case. Lowe claims standing as a county tax-payer. _Sun-Sentinel_, March 20. Virginia Circuit Judge Benjamin N.A. Kendrick ruled March 4 that Arlington=FEs domestic partnership benefits policy is preempted by state law. Ruling on a claim brought by three local tax-payers, Kendrick found that local governments lack authority under Virginia law to define "dependent" to include unmarried partners of their employees. Kendrick stayed his ruling to allow the city to appeal to the Virginia Supreme Court. The ruling is premised on the Dillon Rule, under which local government legislative authority is limited to powers expressly granted or clearly implied by the state legislature. _Washington Post_, March 5. The Arlington County Board voted March 13 to appeal this decision to the Virginia Supreme Court. _Washington Blade_, March 19. U.S. District Judge Schwartz (S.D.N.Y.) denied summary judgment to the employer on same-sex harassment claims brought under Title VII and the N.Y. Human Rights Law. _Matute v. Hyatt Corp._, 1999 WL 135204 (March 11). Victor Matute, hired as a room service attendant by Hyatt Hotels, was discharged during his probationary period. Matute claims that his supervisor, Frank Taylor, subjected him to sexually-harassing conduct in the form of repeated inappropriate touching, including touching his penis, tweaking his nipple, trying to kiss him, and unwanted shoulder massages. Hyatt contends that Matute was discharged for poor performance, while Matute says the discharge was at least partly because of his negative response to Taylor=FEs "sexual overtures." Judge Schwartz found that Matute=FEs complaint stated claims of quid pro quo and hostile environment harassment, and could not be decided on summary judgment due to material factual disputes under both theories. Schwartz also rejected Hyatt=FEs argument that it was automatically free of liability because Matute never brought these issues to its attention prior to his discharge, observing that a factual inquiry is necessary as to whether Hyatt=FEs system for dealing with such complaints was adequate and whether circumstances might have discourage Matute from complaining. However, the court did grant summary judgment against Matute on his state law emotional distress claim, finding that New York sets a high standard for such claims which was plainly not met by Matute=FEs factual allegations.=20 Noting differences in federal and state law, Schwartz dismissed Taylor as an individual defendant from the federal action but kept him in the case as an individual defendant in the state law action.=20 In a similar case, U.S. District Judge Vratil (D. Kansas) denied summary judgment to the employer in _Carney v. City of Shawnee_, 1999 WL 151042 (Feb. 19), in which three male police officers alleged that their male supervisor subjected them to quid pro quo and hostile environment sexual harassment. The factual allegations included repeated solicitations for oral sex and unwanted touching, together with transfers to undesirable assignments and the refusal of higher authorities to take the charges seriously. However, the court dismissed a state law emotional distress claim. A Denver, Colorado, jury has awarded $150,000 in damages to Dan Anderson, who claimed he was fired by Cherry Creek Dodge as a service manager because he is gay. Although the jury did not rule in Anderson=FEs favor on his sexual orientation discrimination claim, it found the dealership guilty of outrageous conduct that included derogatory signs and remarks by the owner made in front of other employees, according to the _Rocky Mountain News_, March 4.=20 Anderson is represented by Robert Borquez, a gay attorney who was himself a plaintiff in a case seeking to establish that Colorado laws prohibiting employers from discriminating against employees because of lawful off-duty conduct apply to anti-gay discrimination.=20 Evidently, the jury didn=FEt go for that theory in this case. Borquez said that attorneys for the defendant had offered $7500 to settle the case prior to the verdict. The owner of Cherry Creek Dodge, Doug Moreland, told reporters that the claims against him were unsubstantiated and he plans to appeal. James Merrick, a gay school teacher who filed a discrimination claim with the California State Labor Department after the Rio Brave- Greeley Union School District granted the requests of parents to remove students from his classes, has reached a settlement prompted by Labor Commissioner Jose Millan=FEs March 9 ruling in favor of his complaint. Under the settlement, which has been approved by the Bakersfield Board of Education, the school district will adopt a non-discrimination policy and will specifically agree to reject any parental request to transfer students based on the "ethnicity, race, national origin, age, sex, actual or perceived sexual orientation, disability, or political or religious beliefs of classroom teachers." The Board will also make a public statement of support for Merrick, who is planning to retire in June.=20 Merrick is represented by Lambda Legal Defense Fund staff attorney Myron Dean Quon. The settlement was negotiated with the participation of the California Teachers Association. Merrick was a recent recipient of the Teacher of the Year Award from the Bakersfield Chamber of Commerce. _Lambda Press Release_, March 18; < MI>Los Angeles Times_, March 10. =20 In the continuing saga of attempts by right-wingers to wreak vengeance on lesbian high school teacher Wendy Weaver, the Utah 4th District Court ruled March 16 that various counts in a complaint filed by the "Citizens for Nebo School District for Moral and Legal Values" should be dismissed. The plaintiffs sued the state, contending that Weaver=FEs license to teach should be revoked on the ground that her continued employment violated the Constitutional rights of the parents and various state laws concerning operation of the public schools, including the state=FEs sodomy law.. Judge Ray Harding, Jr., dismissed most of the counts, but retained a count claiming that Weaver violated religious and personal rights of some of her students at Spanish Fork High School by, for example, being present in the locker room when members of the women=FEs volleyball team were showering. Weaver=FEs attorney, Richard Van Wagoner, and the Utah ACLU, working with Van Wagoner on her defense, were preparing to move to dismiss the remaining counts.=20 _Deseret News_, March 17; March 24. Meanwhile, U.S. District Judge Bruce Jenkins has ordered the Nebo School District to pay $61,910 to cover Weaver=FEs legal fees in her successful federal court suit contesting the school=FEs refusal to reappoint her to coach the volleyball team and the school=FEs gag order on her possible public discussion of her sexual orientation. _Deseret News_, March 23. In a case briefly noted in the _New York Law Journal_ on March 8, _Lipman v. Honicorp Inc._, State Supreme Court Justice Louis B. York (N.Y. County) ruled that a plaintiff complaining of anti-gay employment discrimination who intended to rely at trial on testimony by his domestic partner would have to disclose the partner's name in response to a proper discovery request. The court found there was no applicable evidentiary privilege covering the partner's identity. Defense counsel had promised to keep the partner's name confidential and not to file the deposition transcript with the court. Thus, the partner's identity will only become public if the case actually goes to trial. A.S.L. Legislative Notes U.S. Representatives Barney Frank (D.-Mass.) and Tom Campbell (R.-Cal.) have introduced H.R. 1123, a bill that would amend the "Solomon Amendment" so that federal funds for student financial assistance would not be affected by a school's decision to adopt a non-discrimination policy that results in preventing on- campus access to students by military recruiters. The current version of the Solomon Amendment, sec. 514 of 104 Pub.L. 208 (enacted 9/30/96), provides that no funds appropriated for the Departments of Labor, Health & Human Services, Education or related agencies, may go to institutions of higher education that adopt policies that either directly exclude military recruiters or have the effect of excluding military recruiters from on-campus access; Solomon also cuts off federal funds to schools that don't allow ROTC units to function on campus. The Frank-Campbell bill, introduced March 16, would merely clarify that the funding ban applies to financial assistance to the institutions, not to financial assistance to students (or grants to the institutions that are to be used for student financial assistance). It is the threat to cut off student assistance funding that has led many law schools to allow military recruiters on campus, despite the schools' non- discrimination requirements. U.S. Senator Jesse Helms has introduced S. 45, a bill intended to overrule President Clinton's Executive Order 13087, which prohibits sexual orientation discrimination in employment within the executive branch of the federal government. The bill has two parts, one prohibiting any officer or employee of the federal government from adopting any policy expanding civil rights protection beyond the categories contained in existing statutes, and the second prohibiting use of federal funds to implement E.O. 13087. Helms has introduced similar bills in the past, and a similar bill originating in the House actually got as far as a conference committee last year before being dropped. _Washington Blade_, Feb. 26. The New Hampshire House voted 226-130 to repeal a state law that bans gays from adopting kids, and by an even greater margin, 233- 123, voted to repeal a law prohibiting gays from serving as foster parents, both on March 18. These laws were passed during the 1980's in response to a media blowup in New England sparked by a _Boston Globe_ article about negative neighborhood reaction to the placement of two small boys with a gay male couple as foster parents. Ironically, an attempt by then-Gov. Michael Dukakis of Massachusetts to adopt regulations effectively barring gays from being foster parents were declared unconstitutional by a state trial judge and subsequently abandoned in settlement of the lawsuit, but the constitutionality of the New Hampshire ban was upheld in an advisory opinion to the legislature by the New Hampshire Supreme Court. N.H. Gov. Jeanne Shaheen announced she would sign the repeal measures if they get through the more conservative State Senate.=20 _Manchester Union-Leader_, March 19. The town of Castine, Maine, enacted a human rights ordinance that bans sexual orientation discrimination in employment, town services, housing, access to public accommodations, and education. The March 22 vote at the town meeting was taken by a show of hands, after a call for a secret ballot was turned down. _Bangor Daily News_, March 25. The Arkansas Child Welfare Agency Board gave final approval on March 23 to a regulation that will ban lesbians, gay men and bisexuals from serving as foster parents. The head of the ACLU of Arkansas announced her expectation that the measure will fall to a constitutional challenge. _Memphis Commercial Appeal_, March 26. The Los Angeles County Board of Supervisors voted March 23 to establish a formal registry for domestic partners. Although the measure passed by the Board does not confer any specific benefits on registered partners, it establishes a mechanism that businesses and others can rely upon for proof that a particular couple should be treated as domestic partners. _Los Angeles Times_, March 24. The Pinellas County, Florida, School Board has voted to adopt a policy protecting lesbian and gay students from discrimination, but balked at amending the district's hiring and promotion policies to ban sexual orientation discrimination. The March 23 vote is subject to further confirmation at the Board's scheduled meeting on May 11.=20 _St. Petersburg Times_, March 24. The Maryland House of Delegates voted 80-56 in favor of legislation that would ban sexual orientation discrimination on March 24, the first time such legislation has won approval by a house of the state's legislature. Observers predicted an uphill battle to win passage in the state Senate. The vote came soon after Governor Parris N. Glendening personally testified in support of the measure before the Judiciary Committee. The governor's emotional testimony recounted the death of his brother from AIDS, and the terrible burden his brother had carried as a career military officer concerned about subjecting himself to discrimination if his sexual orientation became known. _Baltimore Sun_, March 25; _Washington Post_, March 13. The Illinois General Assembly narrowly rejected a bill that would have amended the Illinois Human Rights Act to add sexual orientation to the list of characteristics that may not be the basis of discrimination in housing, employment, public accommodations and financial transactions. The 57-59 vote on March 22 came despite support for the measure by Gov. George Ryan and the rest of the Illinois's statewide elected officials. _Chicago Tribune_, March 23. New Mexico's House of Representatives voted 35-27 on March 8 to reject a measure that would have added sexual orientation to the state law banning discrimination in employment, housing, credit, public accommodations and union membership. This was the first time the bill had gotten out of committee in the House; a previous version was actually passed by the State Senate in 1993 but died in a House committee. _Albuquerque Journal_, March 9. The New York State Assembly passed this term's version of the state sexual orientation discrimination bill by 105-43, the largest margin error, giving some hope that Senate Republican leaders may be sufficiently impressed by widespread support for the bill to allow it to come to a vote in the Senate for the first time. Gay rights advocates pointed out that 20 of the Assembly's 50 Republican members, including the Minority Leader, voted for the bill, most for the first time, thus giving it a patina of bipartisan support. Gov. George Pataki, a Republican, had previously announced that he would sign the bill if it was enacted, but has not made any visible efforts to get the Republican majority in the Senate to allow the measure to come to the floor for a vote. _N.Y. Blade News_, March 26; _LGNY, April 8. The Oregon Health Services Commission voted unanimously on Feb. 25 to exclude sex-reassignment surgery from coverage under state health plans. Transgender activists had been lobbying for two years to have such operations included in the list of approved treatments.=20 The state plan covers 300,000 low-income Oregonians. _Tacoma News Tribune_, Feb. 26.=20 Public employees in two jurisdictions may be poised to obtain access to domestic partnership benefits. The _Bangor Daily News_ reported April 1 that Portland, Maine, City Manager Robert B. Ganley announced that a plan to insure domestic partners of city employees appears to have the support of most city councilors; if passed, the proposed benefit option would go into effect on July 1. The _Spokesman Review_ of Spokane, Washington, reported March 31 that Latah County, Idaho, county commissioners have asked the county attorney to work on a pending proposal to extend benefits to domestic partners of county employees. A.S.L. Law & Society Notes The Servicemembers Legal Defense Network issued its fifth anniversary report on the "Don't Ask, Don't Tell" policy governing military service by lesbians, gay men and bisexuals, on March 15, 1999. The report noted that discharges had gone up under this policy, reaching a new high point in 1998, and SLDN presented documentation of more than twice as many cases of violations of the "don't ask" part of the policy during 1998 as occurred during 1997. The Defense Department's response to these figures is to contend that they represent an increase of servicemembers who voluntarily "come out" in order to get out of their enlistment obligations early. _New York Times_, March 15. The National Press Club in Washington, D.C., announced that domestic partners of unmarried members will be entitled to the same benefits available to spouses of married members, according to an internet posting by the International Medical News Group on March 5. =20 A Methodist Ecclesiastic Court ruled March 26 that Rev. Greg Dell violated the rules of the church by officiating at a same-sex commitment ceremony at his church in Chicago. The 10-3 vote was not unexpected, and will be followed by a new hearing on potential penalties, which could include expulsion from the church. _New York Times_, March 27. Mark D. Jordan, an openly-gay tenured professor at Notre Dame University, has resigned in protest against the university=FEs decision to reject the addition of sexual orientation to its non- discrimination policies. Jordan has accepted a professorship at Emory University, where he will be the Aquinas Professor in Catholic Studies. Jordan, who is a distinguished academic, was previously a tenured faculty member at the University of Dallas, a Catholic institution. He was described by a Notre Dame administrator as "a key member of the faculty of the Medieval Institute. Mark is an internationally known scholar and an excellent teacher who has done a lot for our students." Jordan had been considering an offer from Emory, but had told Emory officials that he wouldn=FEt take it unless Notre Dame rejected the petition to ban sexual-orientation discrimination. Jordan was closeted, and married, when he joined the Notre Dame faculty in 1985, but divorced in 1991, established a committed relationship with Dan Weber (who died from AIDS in 1995), and was named a full professor shortly before Weber=FEs death.=20 His book, "The Invention of Sodomy in Christian Theology," was published in 1997 by the University of Chicago Press. A new book, "Homosexuality in the Modern Catholic Church," is scheduled for publication next spring, also by the University of Chicago Press. _South Bend Tribune_, March 29. U.S. District Court Judge Paul L. Friedman in Washington, D.C., has upheld the decision of the Internal Revenue Service to quash the tax exempt status of The Church at Pierce Creek in Vestal, N.Y., which took out advertisements in opposition to Bill Clinton's presidential campaign in 1992. The ads, headed "Christian Beware," accused Clinton of having supported "abortion on demand," the "homosexual lifestyle" and condom distribution in public schools, and asserted that "Bill Clinton is promoting policies that are in rebellion to God's laws." The ads urged voters to "not put the economy ahead of the Ten Commandments." The ads appeared in _USA Today_ and the _Washington Times_ shortly before the 1992 elections. and specifically requested readers to send "tax deductible contributions" to the church. Under federal tax laws, religious institutions are accorded tax-preferential treatment, and donations to them are tax deductible, provided they do not take an active role on behalf of candidates for public office and do not spend more than a de minimis part of their budgets on other political activities. _New York Times_, April 1; _Washington Post_, March 31. The University of Wisconsin at Madison College of Letters and Science is the beneficiary of a bequest worth at least $5 million from the estate of a retired gay professor, George Mosse. The bequest is to be used to fund a fellowship, a lesbian and gay studies program, and an exchange program between UW-Madison and Hebrew University in Jerusalem, Israel. Mosse taught European history, and was the author of more than 20 books. His last book was titled "Images of Man: The Idea of Masculinity." Mosse, who was born in Berlin and whose family fled Germany in 1933, was also a scholar-in-residence at the U.S. Holocaust Memorial Museum in Washington, D.C. _Wisconsin State Journal_, March 30. Gill Dunne, a former faculty member at Cambridge University in England who is now a researcher at the London School of Economics, has released a study of lesbian couples and their children which she interprets to show that parental sexual orientation has no apparent impact on the development of children. _Washington Blade_, Feb. 26. A.S.L. Developments in European and U.K. Law _Military Employment_. At 9:00 a.m. on May 18 in Strasbourg, the European Court of Human Rights will hear its first case dealing with a gay or lesbian issue under the European Convention on Human Rights other than criminalization of sexual activity. The court declared admissible, on Feb. 23, four applications regarding the U.K. government's policy of dismissing all gay, lesbian and bisexual military personnel. (A declaration of admissibility by the court under the new Protocol No. 11 procedures, see [1998] LGLN 192, is roughly equivalent to a grant of cert. by the U.S. Supreme Court.) =20 The four applications are: _Smith and Grady v. U.K._, joined Applications nos. 33985/96 and 33986/96; and _Lustig-Prean and Beckett v. U.K._, joined Applications nos. 31417/96 and 32377/96 (the two separate decisions on each set of two applications are available in English at http://www.dhcour.coe.fr/hudoc). In _Smith and Grady_, the court declared admissible (arguable) complaints under Articles 3 (inhuman and degrading treatment, especially the manner in which the investigation into their homosexuality was carried out), 8 (private life), 10 (expression), 13 (lack of an effective remedy), and 14 (discrimination, in conjunction with Articles 3, 8 and 10), but declared inadmissible as time-barred a complaint under Article 5 (physical detention by military officials). In _Lustig-Prean and Beckett_, the court declared admissible complaints under Article 8 and Article 14 in conjunction with Article 8. The court makes declarations of admissibility "without prejudging the merits of the cases" and does not comment on the legal issues, except to note that they are "complex and serious" and "require determination on the merits." =20 _Gay Father and Custody_. The European Court of Human Rights may soon hear its first case dealing with the rights of gay and lesbian parents under the European Convention on Human Rights. On Dec. 1, 1998, in _Salgueiro da Silva Mouta v. Portugal_, Application no. 33290/96 (available in French at http://www.dhcour.coe.fr/hudoc), the court declared admissible an application challenging the Lisbon Court of Appeal's reversal of the Lisbon Family Court's decision to transfer parental authority over a 6-year-old girl from her heterosexual mother to her gay father.=20 The Court of Appeal found for the mother, even though she had violated their divorce agreement by denying the father access to the girl, and then kidnapped the girl a year after she had lost in the Family Court. The Court of Appeal held that "[t]he child must live within a family, a traditional Portuguese family, which is certainly not the one the father has decided to create, because he is living with another man, as if they were husband and wife ... [H]omosexuality ... [is an] abnormality and a child must not grow up in the shadow of abnormal situations ..." The Court of Appeal also treated as relevant the girl's allegations of sexual abuse against her father's male partner, which the Family Court had rejected, on the basis of a psychologist's report, as not credible and the likely result of suggestions by adults. The father's application complains that the Court of Appeal's decision violates his Article 8 right to respect for his family life, his Article 8 right to respect for his private life (because the Court of Appeal required him to hide his homosexuality during visits with his daughter), and his right under Articles 8 and 14 to be free from discrimination in relation to his private and family life (the Court of Appeal's decision having been based exclusively on his sexual orientation). No hearing has been scheduled yet, as a "friendly settlement" of the case is still possible. _Transsexuals and Publicly-Funded Surgery_. On Dec. 21, 1998, in _R. v. North West Lancashire Health Authority, ex parte A. and others_, Queen's Bench Division (Crown Office List), Nos. CO/1038/98, CO/281/98, CO/286/98 (see LEXIS), Mr. Justice Hidden quashed the respondent health authority's decisions not to fund gender re-assignment surgery for three male-to-female transsexuals and ordered the authority to reconsider them. He rejected arguments based on the European Convention on Human Rights, and on European Community law on sex discrimination in the provision of social security, but held that the decisions were "Wednesbury unlawful and irrational" under principles of English administrative law, in that the authority had failed to consider relevant matters, had considered irrelevant matters and had fettered its discretion. The authority had adopted a policy of refusing to pay for gender re-assignment surgery "except in cases of overriding clinical need." The policy appeared to amount to a blanket ban because it was not clear what would constitute overriding clinical need.=20 If it were a psychotic or depressive illness, in addition to transsexualism, the applicants would be precluded medically from gender re-assignment surgery because they would not have stable personalities. A major reason why these applications for judicial review succeeded is that, through the National Health Service (founded in 1948), residents of the U.K. are generally entitled to publicly-funded medical treatment (including combination therapy for HIV infection). _Refugee Claims_. On March 25, in _Islam v. Secretary of the State for the Home Department_, and _R. v. Immigration Appeal Tribunal, ex parte Shah_ (available at http://www.parliament.the-stationery-office.co.uk/pa/ld/ldjudinf. htm), the House of Lords (the highest court in the U.K.) held that women in Pakistan are "a particular social group" for the purposes of the 1951 Convention Relating to the Status of Refugees.=20 Three of the five judges (Lords Steyn, Hoffmann and Millett) said that they would also consider homosexuals "a particular social group" for the purpose of refugee claims, depending on the evidence with regard to their position in a particular country. =20 _Group Sexual Activity_. The Feb. 11 decision of the Court of Appeal on the sentences of five men convicted of group sexual activity (see [1999] LGLN 41) is now available on LEXIS. In _R. v. Turner_, Bracewell and Maurice Kay JJ. heard appeals by Turner (then 19), Godfrey (26), Abdie (22), Moore (21) and Love (21). They had been convicted of offences of gross indecency (any sexual activity between men) or buggery (anal intercourse). The sexual activity was consensual (except that there was some evidence of mild coercion in the case of Turner), was among adults (except that Turner was 17.5 at the time and under the age of consent of 18), and took place in private homes (except that "more than two [male] persons took part or were present," which made it illegal under the Sexual Offences Acts 1967). A separate case, also involving group sexual activity recorded on videotape, is now before the European Court of Human Rights and could lead to the "more than two persons" rule for male-male sexual activity being held to violate the European Convention (see [1997] LGLN 78). In _Turner_, the Court of Appeal held that Turner could be convicted, even though the age of consent law is arguably intended to protect him from older men, and that the trial judge was not bound to take the European Convention into account in exercising his discretion in sentencing. The offences were serious enough to warrant community service orders because they "took place in the context of video recorded orgies, sometimes involving acts between virtual strangers. Whilst there was no commercial motive and it was accepted that the recordings were not intended for a wider distribution, the offences may be seen as more serious than say, a single consensual act between two men of similar age and experience in a public lavatory, out of the view of other members of the general public." However, in these particular cases, the orders were too onerous and were quashed. Probation orders were substituted, except in the case of Abdie, who "was effectively of good character and ... has subsequently settled down in a heterosexual relationship of which there is a child."=20 _Robert Wintemute_ Other International Notes A White Paper on Britain=FEs dependent territories released by Foreign Secretary Robin Cook makes clear that until they drop their laws against consensual homosexual conduct, the territories=FE citizens will continue to be denied British citizenship. Homosexual conduct remains a criminal offence in Anguilla, Montserrat, Turks and Caicos, British Virgin Islands, and Cayman Islands._Daily Telegraph_, March 5. "The Australian Federal Police has approved full spousal rights to the same-sex partner of a federal police officer working as the Australian liaison officer in Rome," reports the _Canberra Times_ of March 14. The Australian Council for Lesbian and Gay Rights received this news with a new demand: that recognition of same-sex partners extend throughout the Australian military, which allows service by openly lesbian, gay and bisexual members.=20 An Australian man has been sentenced to 19 years in jail, with a 15 year non-parole period, for having murdered a male sex partner in order to experience a sexual high. Jamie Koeleman, 30, confessed his crime to a friend after viewing the American film "Cruising," according to the _Melbourne Herald Sun_, March 27. According to a statement by Supreme Court Justice Phillip Cummins in open court while sentencing him, Koeleman went out cruising one day to find a man he could kill as part of a sexual act. "That fantasy involved the sacrificing of another human being to your sexual desires. You decided to go cruising, to select another homosexual and to kill that person as part of a self-centred sexual experience." The victim, Francis Barry Arnoldt, was stabbed five times in the back and then twice through the heart while having sex with Koeleman. In a secretly taped conversation with a friend, Koeleman said the murder gave him his most powerful orgasm. "I=FEll never forget those eyes. Such fear. . . terror." Reuters reported March 19 that the Swedish government plans to allow foreign nationals living in Sweden to take advantage of that nation=FEs registered partnership law. Under current law, at least one member of a couple must be a Swedish citizen to be able to register the partnership. The amendment would take effect March 1, 2000, and would allow same-sex couples who have lived in Sweden for at least two years to register. The two year residency requirement will not apply to citizens of Denmark, Iceland, the Netherlands or Norway, which already authorize registration of same-sex partners.=20 The government proposal requires Parliamentary approval before it can take effect. The age of consent battle is once again joined in the U.K. At the beginning of March the House of Commons approved a bill by a vote of 281 to 82 to lower the age of consent for gay male sex from 18 to 16, thus equalizing the age of consent for heterosexual and homosexual sex. Last summer, the House of Lords rejected a similar bill, but in recent days the Lords have approved new legislation introduced by the Labour Party to restructure the House and remove voting privileges from hereditary peers. In addition to the age of consent bill, an overwhelming majority of the MPs voted to support a measure that would ensure that persons under the age of 16 who have sex with adults will not face prosecution, this to encourage them to report such activities so the adults can be prosecuted.=20 _Evening Standard_, March 2. Prague Radio E-News reported that the government of the Czech Republic has provisionally approved legislation that would allow same-sex partners to legally formalize their relationship before a notary. This would enable same-sex couples to exercise most of the property and social rights now enjoyed by married couples, including receiving pensions on the death of a partner, renting housing as families, and similar benefits. =20 Seeking to avoid an adverse ruling in a case pending in federal court, the Canadian government has agreed to offer pension benefits to the same-sex partner of Dale Akerstrom, a gay Vancouver civil servant. Akerstrom had previously won a ruling by a Human Rights Tribunal that his partner, Alexander Diaz, was entitled to domestic partnership health and dental benefits. At the same time, there have been several press reports, some conflicting, about plans by the Canadian federal government to introduce various legislative measures intended to equalize the status of same-sex and opposite- sex domestic partners under a variety of statutory schemes, including the tax laws. _Globe and Mail_, March 17. Canadian Finance Minister Paul Martin is proposing changes in the Income Tax Act and the law governing the Canada Pension Plan to recognize same-sex couples as entitled to the same treatment as spouses. The move comes in response to the _Rosenberg_ case, in which the Ontario Court of Appeal found same-sex couples entitled to equal treatment in the matter of survivor benefits, and the government's decision not to appeal the case. Canadian appellate courts have proved very receptive to claims on behalf of same-sex couples, in light of the tradition in many parts of Canada of according quasi-spousal status to unmarried heterosexual partners.=20 _Globe and Mail_, March 29.=20 Daniel Aranoff, a Canadian transgendered person, has won a legal battle in Quebec Superior Court to have his sex designation on his birth certificate changed from female to male. Aranoff had undergone surgery to remove his breasts and ovaries, as well as hormone treatment, but local government officials refused to make the change in official documents unless Aranoff also had male sex organs constructed and the vagina removed. Aranoff has been living as a man for five years. His court victory will clarify which surgical procedures are prerequisites for a change of sex designation on a birth certificate in Canada. _Calgary Sun_, March 25. A.S.L. Professional Notes Gay legal observers mourned the death of retired U.S. Supreme Court Justice Harry Blackmun, who wrote a passionate dissenting opinion in the court's notorious _Bowers v. Hardwick_ opinion.=20 Blackmun, the author of the controversial decision recognizing a constitutional right for women to seek an abortion in _Roe v. Wade_, became an ardent exponent of the theory of constitutional right of privacy, and argued in his _Hardwick_ dissent that the privacy right extended to the sexual intimacies of gay men and lesbians. According to the _National Law Journal_, March 1, Benjamin Schatz, a San Francisco lawyer who is executive director of the Gay and Lesbian Medical Association and a member of the President's Council on HIV/AIDS, plans to forsake the law for a full-time career as a drag performer and manager of The Kinsey Sicks, a San Francisco-based drag act. Mr. Schatz, who was also formerly a staff attorney with the now-defunct National Gay Rights Advocates, is a 1985 graduate of Harvard Law School. The Massachusetts Lesbian and Gay Bar Association will hold its 14th annual dinner on Friday, May 7, 1999, at the Royal Sonesta in Cambridge. The keynote address will be given by Justice Margaret H. Marshall of the Massachusetts Supreme Judicial Court. The MLGBA will present awards to Boston Mayor Thomas M. Menino and Superior Court Justice Linda E. Giles. For more information about dinner reservations or advertisements in the commemorative journal, contact Maureen Brodoff at 617-984-7256. Vermont lawyer Ed Flanagan, the only openly-gay elected statewide public official in the nation (State Auditor), has announced that he will seek the Democratic nomination for United States Senate in 2000, challenging the expected re-election bid of Republican U.S. Senator James Jeffords. Jeffords is one of the few Republicans in the Senate who is generally seen as gay-friendly, having co- sponsored the Employment Non-Discrimination Act and taken generally positive positions on other gay and AIDS-related issues. Flanagan argues that while Jeffords may be good on gay issues, he lines up solidly with Senate Republicans on many other issues and voted for the Defense of Marriage Act in 1996. _Washington Blade_, March 19. The National Organization for Women has organized a Lesbian Rights Summit to be held in Washington, D.C., on April 23-25, 1999. Co- sponsored by seventy other organizations, the event will include presentations by Grethe Cammermeyer, Urvashi Vaid, Willa Taylor, and Patricia Ireland. For info, contact the NOW Press Office at 1-800- 331-0066 (Loretta Kane, x 762). On-line registration information is available at: . A.S.L. AIDS & RELATED LEGAL NOTES N.Y. High Court Holds for PWA in Disability Insurance Dispute In a unanimous ruling issued March 30, the N.Y. Court of Appeals held that the statutorily mandated incontestability clause required to be included in all insurance contracts sold in New York means what it says: the insurer has two years to discover grounds for rescission, after which the insured has a right to rely on the promise of benefits. _New England Mutual Life Insurance Co. v. Doe_, No. 39 (NYLJ, 3/31/99, p.28, col.3). However, the victory, rendered on the claim of a person with AIDS, may have limited impact, since, as the court noted, insurers can escape this problem by including an express exception for "fraudulent misrepresentations" into their incontestability clauses - a step some have refrained from taking as part of their aggressive marketing strategies. The John Doe plaintiff in this case submitted an application for disability insurance to the insurer in April 1991. At the time, Doe knew he was HIV+ and was already taking medication for that condition, but he did not reveal this on the application and answered "no" "to the questions whether, in the past five years, he had had any other `medical advice or operation, physical exam, treatment, illness, abnormality or injury,' and whether he was `currently receiving any medical advice or treatment.'" Five years later, Doe filed a claim for disability benefits due to "HIV and AIDS, Toxoplasmosis." While initially paying the benefits, the insurer made a reservation of rights and began to investigate the issue of Doe's HIV status. Upon learning that Doe was receiving HIV-related treatment at the time of his application, the insurer filed suit for a declaration that it was not required to cover this disability. The insurer based its case on a pre-existing conditions clause, which provided that the policy would not cover disabilities caused by medical conditions pre-dating the date of issue of the policy, which on its face seems to preclude coverage in this case for AIDS- related disability. However, Doe argued that the effect of this provision was overridden by the incontestability clause, required to be included in the policy under N.Y. Ins. L. sec. 3216(d)(1)(B).=20 The incontestability clause provides that after the policy is in force for two years, the insurer "cannot contest the statements in the application," and that "No claim for loss incurred or Disability that starts after two years from the Date of Issue will be reduced or denied because a sickness or physical condition not excluded by name or specific description before the date of loss had existed before the Date of Issue." The insurer argued that the second part of the incontestability clause should be construed to apply only to conditions that had not manifested themselves as of the date of issue, contending that to do otherwise would be to reward fraud, but the court was not persuaded, finding that such a reading was inconsistent with the language of the clause, which refers to any conditions that "exist." Wrote Judge Albert Rosenblatt: "Exist means exist. We will not limit the definition of the word exist, or redefine it, to mean `unmanifested existence.' If something exists, it does not cease to exist merely because someone (in this case the policyholder) knows of it." The opinion provides a concise history of the incontestability clause, which originated in English law based on the suspicion that insurers would wait until the life-insured person was deceased before raising objections to the policy; thus, the purpose of the clause was to create a sort of statute of limitations for insurers to find fault with the application, and to insure purchasers of insurance that once a specified period of time had passed, they could rely on the benefits promised under the policy so long as they fulfilled its other conditions (payment of premiums). Rosenblatt quoted Supreme Court Justice Oliver Wendell Holmes, who wrote in _Northwestern Mutual Life Ins. Co. v. Johnson_, 254 U.S. 96, 101-102: "The object of the clause is plain and laudable - to create an absolute assurance of the benefit, as free as may be from any dispute of fact except the fact of death, and as soon as it reasonably can be done." Although the concept originated with life insurance, it has spread by statute to other forms of insurance, including disability policies such as the one at issue in this case. The insurer also sought to rely on a line of decisions in other states recognizing an exception for cases of fraud. However, there is an even more impressive line of decisions in yet other states rejecting such a fraud exception, at least where the insurer did not include express language in the policy alerting the purchaser that such an exception might apply. Rosenblatt noted that an insurer in New York has the option of including an express exception to incontestability for "fraudulent misstatements" on the application, but that in this case the insurer "purposely chose not to include a fraud exception and is bound by that choice - a calculation that includes marketing inducements." Rosenblatt quoted from a law review article that speculated that insurers refrain from including such express exceptions to enhance the marketability of their products. Actually, many New York insurers already include anti-fraud provisions, so the decision is significant more as a resolution of the issue (which will affect several cases pending in lower courts) and as a contribution to a trend in the case law, than as one that will affect large numbers of New York policy-holders. Still pending is an appeal to the California Supreme Court in _Galanty v. Paul Revere Life Insurance Co._, 66 Cal.App.4th 15, 77 Cal.Rptr.2d 589 (Cal.Ct.App. 1998), in which the lower court came out the other way and found the benefits claim barred on grounds of fraud by the HIV+ applicant. The John Doe plaintiff is represented by Mark Scherzer, a LeGaL member who has specialized in insurance litigation on behalf of persons living with HIV and AIDS and their survivors and beneficiaries, and Mark's associate A. Christopher Wieber. Lambda Legal Defense Fund filed an amicus brief on behalf of Doe written by AIDS Project Director Catherine Hanssens and cooperating attorney Barry Burland of Milbank, Tweed, Hadley & McCloy. A.S.L. Texas Appeals Court Suspends Attorney Who Refused to Represent HIV+ Criminal Defendant The Texas Court of Appeals, El Paso, affirmed a trial court's decision to suspend attorney Allan R. Hawkins from the practice of law for one year, followed by a three-year probated suspension, because of Hawkins' conduct after he was appointed to represent Daniel Sundy, an HIV+ positive man who was arrested on a marijuana charge. _Hawkins v. Commission for Lawyer Discipline_, 1999 WL 144724 (March 18). Midland County Court at Law Judge James Fitz-Gerald appointed Hawkins to represent Sundy on Aug. 8, 1994. Sunday was charged with a misdemeanor for possessing less than two ounces of marijuana. He claimed that he was using the marijuana medicinally to help him digest food, and had no prior arrest record. Three weeks later, Hawkins filed a series of motions in the case, including a "Motion for Appointment of an Effective and Competent Attorney," in which he claimed that he was not competent to provide counsel in a criminal case. Hawkins continued to represent Sundy while awaiting a ruling on his motion for appointment of new counsel, and additionally filed a motion seeking a payment of $2,000 to the Permian Basin Aids Coalition in recognition of Hawkins' services "above and beyond the call of duty for an attorney and member of the bar of the State of Texas" for having been in contact with Mr. Sundy and thus risking "exposure to the HIV virus and death" at great inconvenience to himself and his other clients. After Hawkins made a second motion for appointment of new counsel, Judge Fitz-Gerald held a hearing, at which it was established that Hawkins prior experience included handling some criminal defense matters while employed as an Assistant State's Attorney in North Dakota, and that he had served as an appointed co-counsel in other Texas criminal cases. Fitz-Gerald decided that he was competent and ordered him to continue representing Sundy. But Hawkins decided to reject the order, sent a letter to Sundy telling him he was now without counsel and he should find a new lawyer, and refusing to participate further in the case. Indeed, Hawkins failed to notify Sundy of an upcoming court date, resulting in Sundy almost being jailed for failure to appear, and also failed to counsel Sundy about a proposed plea bargain offered by the prosecutor. The court found that while an attorney has an obligation under the disciplinary rules to decline cases for which he is not qualified, in instances of court appointment it is up to the court to determine whether a lawyer is competent, and if the court so rules and confirms its appointment, the lawyer cannot decline to serve on grounds of incompetence. The court was particularly disturbed that Hawkins appeared to act without regard for the impact of his conduct on Sundy. A.S.L. HIV+ Plaintiffs Can Sue Anonymously 1. An HIV+ plaintiff in a 42 U.S.C. sec. 1983 action was allowed to proceed anonymously against a municipal defendant, but was not entitled to a protective order on a procedural notice of claim containing his name. _Roe v. City of Milwaukee_, 1999 W.L. 116008 (E.D. Wis. Feb. 23).=20 In the course of an arrest by Milwaukee police, John Roe suffered and was treated for a cut hand. He told paramedics and a booking officer that he was HIV+. Once he was in a holding cell, the booking officer taped on Roe's cell door a pink sign with bold black writing which said" "HIV POSITIVE INMATE". Roe sued the city for violations of his civil rights, and requested that he be allowed to litigate under a pseudonym. Roe also sought a protective order over the notice of claim (which contained his real name) that he was required to serve on the city under state law. U.S. District Judge Gordon allowed Roe's motion to proceed anonymously, finding "exceptional circumstances" to justify departing from the normal requirement disfavoring anonymity. Even today, Gordon reasoned, being HIV+ is considered a stigma, the disclosure of which is not inconsequential. The court did not grant, however, the plaintiff's motion for a protective order on the notice of claim. Noting that Roe's argument on this motion was sparse, and contained no authority, the court bowed to the city's argument that the state's open records statute required it to maintain the notice as a public record. The court also stated that Roe had provided no evidence that his notice of claim would actually be requested by a member of the public, and that if the notice were used as evidence in the instant case, it could be filed under seal to protect Roe's anonymity. _Dirk Williams_ 2. U.S. District Judge Shaw (E.D. Missouri) granted the motion of W.G.A., a plaintiff with AIDS, to file a complaint using his initials as a fictitious name. _W.G.A. v. Priority Pharmacy, Inc._, 1999 WL 147370 (March 15.) On an apparent question of first impression in the 8th Circuit, the court held that where "the plaintiff would be required to disclose information of the utmost intimacy," the plaintiff's "substantial privacy right" overcomes the (FRCP 10(a)- based) presumption against allowing parties to use a pseudonym. The court cited a recent Wisconsin case where the federal district judge decided that the plaintiff's HIV+ status was a "compelling reason" to allow him to proceed under a pseudonym, because of the ostracism, harassment and discrimination that might result from disclosure of that status; noting also that "plaintiffs have been allowed to proceed anonymously in matters involving abortion, reproduction and birth control, welfare cases involving illegitimate children, and homosexuality." W.G.A. is pursuing a negligence claim alleging that Priority's recording, filling and mailing of the wrong prescription caused a significant decrease in his life expectancy by allowing the HIV infection to progress unchecked for six months. _Mark Major_ Winning Wasn't Enough for Plaintiff Who Wanted "HIV POS" Vanity License Plate A plaintiff's constitutional claim against the California Department of Motor Vehicles (DMV) was shot down for failing to state a cause of action because there was no causal connection between defendants' conduct and plaintiff's failure to succeed in his prior action. _Dimmick vs. Lungren_, 1999 WL 111793 (U.S.Dist.Ct., N.D.Cal., Feb. 19). In the original action, plaintiff Kevin Dimmick brought 42 U.S.C. sec. 1983, ADA and state tort claims for intentional/negligent infliction of emotional distress against the California DMV and its officers for refusing to issue him a vanity license plate saying "HIV POS." The court ruled on summary judgment that the DMV's refusal to issue the plates violated Dimmick's First Amendment right to free speech. With respect to the other claims, the court granted summary judgment to the defendants and later ruled that Dimmick was precluded from obtaining damages from the individual defendants based on their qualified immunity. In the instant action, the court considers defendants' motion to dismiss Dimmick's second civil rights complaint for failure to state a claim. In the complaint, Dimmick alleges that during the course of his prior civil rights case, defendants individually and in conspiracy with each other, engaged in unlawful and deceptive tactics in an attempt to prevent Dimmick from prevailing in his litigation by intentionally concealing evidence, providing misleading responses in discovery and perjury which obstructed Dimmick's access to the judicial process in violation of the First, Fifth and Fourteenth Amendments plus intentional/negligent infliction of emotional/physical distress. District Judge Illston ruled that Dimmick's sec. 1983 action fails to state a cause of action because he does not and cannot allege a causal connection between defendants' alleged conduct and a failure to succeed in his prior civil rights action. Dimmick ultimately discovered all the allegedly concealed information prior to the resolution of the prior action and by the time of the then summary judgment motion, Dimmick had discovered other HIV-configured plates, the inconsistencies in defendants' position with respect to the number of DMV complaints and DMV policy. Illston reasoned that a constitutional injury cannot be premised on information that was concealed but subsequently discovered prior to the disposition of the action, and the remedy in such a situation is not another civil rights action, but rather appropriate motions in the prior action before its conclusion. Further, the court ruled that Dimmick cannot allege that the defendants' actions impeded his access to the courts since he obtained substantially what he wanted from the court, that the DMV issue to him a plate stating "HIV POS," and that his failure to get damages cannot be the basis for a constitutional injury since the defendants' immunity was causally unrelated to the alleged wrongful conduct. Since Dimmick could not establish a constitutional injury, his conspiracy and policy/practice causes of action based upon the same allegations were likewise dismissed. _K. Jacob Ruppert_ AIDS Litigation Notes In _U.S. v. Smith_, 1999 WL 89050 (7th Cir., Feb. 19) (unpublished disposition), the U.S. Court of Appeals for the 7th Circuit has reaffirmed its view that criminal defendants who are HIV+ but do not have "full blown" AIDS are not entitled to a downward departure under the federal sentencing guidelines.=20 Indeed, the court commented, per curiam: "Because Smith concedes that while HIV positive he does not have "full-blown AIDS," and because the record suggests that the Bureau of Prisons is equipped to adequately treat Smith's condition, any argument that the district court abused its discretion in denying a downward departure would be frivolous." The ruling echoes _U.S. v. Woody_, 55 F.3d 1257 (7th Cir. 1995). =20 A federal jury in the Southern District of New York has awarded $1,280,000 in back pay and damages to Robert J. Disanto, a former salesman for McGraw-Hill Companies who claimed he was terminated because he is HIV+. Disanto claimed violations of the Americans With Disabilities Act and the New York Human Rights Law. A McGraw- Hill spokesperson said the company was considering appealing the verdict, saying that the award inappropriately reflected sympathy for Disanto. At trial, the employer argued that Disanto had resigned voluntarily. Disanto testified that he disclosed his HIV- status to his supervisor in 1994 at a meeting called to discuss his performance problems, and was shortly thereafter told that he had three options: resign, look for another job within McGraw-Hill, or go out on disability. Disanto took a disability leave, but on his return claimed he was subjected to unfavorable treatment, ostracism and progressive isolation by colleagues. Disanto is represented by Lee Nuwesra. _Wall Street Journal_, March 16. =20 In _Iacovino v. Hoaglund_, San Francisco Superior Court, a jury found on March 10 that a surgeon had committed malpractice by refusing to perform shoulder surgery on an HIV+ man. However, the jury rejected the claim that Dr. Franklin Hoagland had engaged in illegal discrimination under the California civil rights law or the Americans With Disabilities Act. Plaintiff Steve Iacovino was denied the surgery, said Hoaglund, an orthopedic specialist, because his HIV+ condition put him at "severe" risk for post- operative infection. However, the jury evidently accepted expert testimony that this was not an appropriate basis for refusing to perform the operation, which should have been performed immediately in light of Iacovino's condition. The jury awarded $166,000 in damages. (Iacovino subsequently went to another surgeon who successfully performed the operation.) _San Francisco Chronicle_, March 13. =20 The estate of Ray Martinez, a former Taco Bell assistant store manager in Los Angeles, has settled a discrimination suit on undisclosed terms. Martinez had claimed that he was an excellent employee who was discharged three months after the company learned that he had HIV. The company defended on the grounds that Martinez was not performing his assigned duties. Martinez=FEs mother continued the action after his death in July 1998. _Orange County Register_, February 27. The Legal Action Center of New York has filed a complaint at the N.Y. State Division of Human Rights on behalf of Quashawn Donovan, who claims she was denied membership in seven different Girl Scout troops in the Queenbury area last year because she is HIV+. The complaint seeks an agreement by the Girl Scouts of America to provide HIV-related training to its staff and to ban HIV-related discrimination, as well as compensation to Donovan, age 8, for emotional distress. _Associated Press_, March 12. A Wisconsin judge has sentenced an HIV+ man who intentionally exposed a woman to infection as a means of "revenge" against whoever had infect him was sentenced to three months in jail and five years on probation, with 50 hours of community service during each of the probationary years. Antonio Dewayne Buford, age 21, will be subject to electronic monitoring of his movements for three months at home after he serves his jail term. Milwaukee Circuit Judge Mel Flanagan entered the sentence March 11 after Buford pled guilty to the felony of first-degree reckless endangerment.=20 According to the prosecutor, the victim (who is not HIV+) favored probation over a lengthy prison sentence. Buford was repentant at his sentencing hearing, telling the judge: "I will not repeat this behavior." _Wisconsin State Journal_, March 13. =20 In _Protective Life Ins. Co. v. Dignity Viatical Settlement Partners_, 1999 WL 152587 (March 24), the U.S. Court of Appeals for the 1st Circuit affirmed the district court=FEs denial of prejudgment interest to a viatical settlement company that had prevailed in litigation over its right to collect benefits under the life insurance policy of a person with AIDS who had misrepresented his HIV status when he bought the policy for Protective Life Insurance Co. The insurance company had mistakenly paid out the claim while its underwriting division was trying to rescind the policy, to the amusement of Circuit Judge Selya, who commented: "Proving once again that, in corporate America, the left hand does not always know what the right hand is doing, Protective mistakenly honored the claim." The district court=FEs solution to this problem had been to require Dignity Viatical to deposit money in a joint interest-bearing escrow account to ensure that if Protective won the litigation there would be funds to reimburse it for the money it had mistakenly paid out. Ultimately, the Massachusetts Supreme Judicial Court answered a certified question, holding that the incontestability clause barred the insurer from disclaiming coverage for AIDS-related death, see _Protective Life Ins. Co. v. Sullivan_, 682 N.E.2d 624 (1997). Following the approach of federal courts under Title VII, the Florida 3rd District Court of Appeal ruled March 24 in _Green v. Burger King Corp._, 1999 WL 157251, that an HIV-discrimination complaint filed in Miami-Dade County Circuit Court was not time- barred, even though the EEOC had previously dismissed the plaintiff=FEs complaint as untimely. Schenita Green originally filed her discrimination complaint with the Florida Commission on Human Relations eleven months after her discharge, which would be timely, but the complaint was not verified, as required by Florida procedural rules. After the Florida Commission referred her complaint to the EEOC, the local EEOC office gave Green a new form to fill out, which she did, in verified form, and filed shortly after the first anniversary of her discharge. Then the local EEOC office dismissed the complaint as untimely and Green filed her state court action. The court held that the state civil rights law was to be liberally construed to further the purposes of the statute and that an amended, verified complaint should be held to relate back to the unverified complaint that was filed within statutory time limits. In _Jones v. State_, 1999 WL 160027 (March 25), the Florida Supreme Court held that defense counsel=FEs strategic decisions about how much to emphasize defendant=FEs HIV+ status in defending against a first-degree murder shooting charge did not provide a basis for overturning the conviction. "The court rejects the defendant=FEs claim that trial counsel should have advised the jury that the defendant was infected with the AIDS virus," wrote the court per curiam. "During the hearing on the postconviction motion, the defendant presented testimony regarding the nature of his illness and his prognosis. This evidence may have evoked sympathy among those jurors who would have been persuaded that the death penalty was unnecessary because the defendant would eventually die a painful death in any event, but the fear and stigma that some jurors might have associated with AIDS out of ignorance in 1989 may have outweighed the potential sympathy for the defendant. The defense attorney did not refer to the defendant's illness during the guilt phase and minimized its effect during the penalty phase. The court is not prepared to say that these decisions amount to ineffective assistance of counsel." Jones was sentenced to death. The Supreme Court affirmed the trial court's denial of post-conviction relief.=20 Justin Keene is the second person to plead guilty under an Iowa law criminalizing transmission of HIV, but may get a light sentence on April 19 because of evidence that his victim apparently consented to sexual intercourse, according to the _Des Moines Register_, March 2. In the first case, Robert Bradfield pled guilty and was sentenced to 25 years in prison, the maximum under the statute. The law went into effect July 1, but so far nobody charged under it has litigated the issue of whether the law is constitutional. =20 On March 15, a New Orleans jury awarded $35.3 million in damages to Leo and Shirley Dixon, whose son died from AIDS after contracting HIV from blood-clotting medication, but Civil District Court Judge Max Tobias then granted a defense motion to dismiss the case based on the statute of limitations. The jury had found Miles Inc. and Alpha Therapeutic liable, on the ground that these companies knew or should have known that they were selling HIV-tainted medication, but did not find against the two other defendants, Baxter Healthcare Corp. and Armour Pharmaceutical Corp. Judge Tobias found that the lawsuit should have been filed by late 1990. Both sides are likely to appeal; the plaintiffs from the court=FEs ruling, and the defendants (who are simultaneously defending several other similar cases in Louisiana courts) from the jury verdict. _New Orleans Times-Picayune_, March 16. In _State v. Lee_, 1999 WL 173656 (La.App., 4th Cir., March 24), the court upheld a life sentence for Eddie Lee, an HIV+ man who was convicted of cocaine possession an had a record of multiple past convictions. In seeking collateral attack on his sentence, Lee argued ineffective assistance of counsel without success. He also argued that imposition of the life sentence was erroneous in light of his HIV status, and points to a letter he had written to the court describing his upbringing, etc., which he claims was not before the court when it rendered the sentence. This attack was also unsuccessful, the court commenting: "Considering that this court [in an earlier appeal] found the appellant=FEs HIV status insufficient to justify a deviation from the mandatory life sentence. . ., it is unlikely that the other factors mentioned in the letter would have been more persuasive." =20 An HIV+ man who spat at police officers after he was arrested in a traffic incident has been sentenced to 90 days in jail and three years of intensive probation. Bryan Keith Binkley of Nashville, Tennessee, was sentenced by Circuit Judge Tim Easter after the prosecutor argued that the "wrong message" would be sent to police officers of Binkley did not receive some prison time. Easter could have convicted Binkley of criminal exposure to HIV/AIDS, which carries a term of 3 to 15 years. There was no indication that Binkley intended to transmit HIV to police officers, and spitting is not a recognized mode of transmission. Easter stated after imposing the sentence that he would suspend the sentence on condition that Binkley serve 90 days in jail "to avoid depreciating the conduct and the seriousness of the offense." _The Tennessean_, March 10. =20 The Howard Brown Health Center in Chicago has filed charges claiming that on three occasions representatives of a real estate company that had seemed eager to provide service to the Center backed out after learning that the Center provides AIDS-related health services. The charges filed with Chicago's Human Relations Commission allege discrimination against the agency's clients on the basis of disability. _Chicago Sun-Times_, March 24. A.S.L. AIDS Legislative Notes The Washington State Board of Health has modified the policy for reporting those who are HIV-infected. Under the new policy, which requires an additional vote by the board this summer before it would go into effect, doctors and testing sites must report the names of HIV+ patients to local health officials; after 90 days, the names would be encoded and the information forwarded in encoded form to the state, and the record of the name would be purged from local health files. The Board hopes by this plan to meet the objections of AIDS activists to name reporting, while dealing with the shortcomings of anonymous reporting that were criticized by, among others, the Centers for Disease Control in its statements promoting names reporting. _Seattle Post-Intelligencer_, March 12.=20 A.S.L. AIDS International Notes A criminal prosecution against former French government officials for allowing HIV-tainted blood to be used for transfusions at a time when screening tests were available essentially collapsed.=20 Former Prime Minister Laurent Fabius, now speaker of the lower house of the French Parliament, and Georgina Dufoix, who had served as Social Affairs Minister in the Fabius government from 1984 to 1986, were acquitted of criminal or civil liability by a specially constituted political jury. Edmond Herve, who had served as Health Minister, was convicted of two counts of negligence, but no sentence was imposed. _New York Times_, March 10. A poll of 4,000 Canadian dentists showed that 16 percent refuse to treat people with AIDS and 18 percent would refuse to provide service to gay patients. The survey was published March 31 in the _American Journal of Public Health_. _Globe and Mail_, March 31. The Ontario, Canada, Court of Appeal ruled March 10 that the Canadian Red Cross Society=FEs negligence in screening blood donors in the 1980's exposes it to damages for negligence in claims brought by people who acquired HIV through transfusions and blood products.=20 A trial judge had dismissed Douglas Walker=FEs suit against the Red Cross, seeking damages for the death of his wife from AIDS, on the ground that Walker had failed to prove that a better screening system would have prevented the transmission to his wife. According to the appeals court, all Walker would have to prove is the agency=FEs negligence and that his wife=FEs infection was due to a blood product.=20 _Globe and Mail_, March 11. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Boggs, Judge Danny J., _Reining in Judges: The Case of Hate Speech_, 52 SMU L. Rev. 271 (Winter 1999). Brants, Chrisje, _The Fine Art of Regulated Tolerance: Prostitution in Amsterdam_, 25 J. L. & Society 621 (Dec. 1998) (British journal). Farrell, Robert C., _Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through_ Romer v. Evans, 32 Indiana L. Rev. 357 (1999). Joslin, Courtney G., _Recognizing a Cause of Action Under Title IX for Student-Student Sexual Harassment_, 34 Harv. Civ. Rts. - Civ. Lib. L. Rev. 201 (Winter 1999). McGoldrick, Dominic, and Therese O'Donnell, _Hate-speech Laws: Consistency with National and International Human Rights Law_, 18 Leg. Studies 453 (Dec. 1998). Nierenberg, Ona, _A Hunger for Science: Psychoanalysis and the "Gay Gene"_, 10 Differences No. 1, 209 (Spring 1998). Ramose, M.B., _Human Freedom and the Law of Marriage_, 16 Current Legal Theory 23 (1998). Sloss, David, _The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties_, 24 Yale J. Int'l L. 129 (Winter 1999). Stychin, Carl F., _Relatively Universal: Globlisation, Rights Discourse, and the Evolution of Australian Sexual and National Identities_, 18 Leg. Studies 534 (Dec. 1998). Weiss, Marley S., _The Supreme Court 1997-1998 Labor and Employment Law Term (Part I): The Sexual Harassment Decisions_, 14 The Labor Lawyer 261 (Fall 1998). _Student Notes & Comments:_ Casenote, National Endowment for the Arts v. Finley_, 118 S.Ct. 2168 (1998), 9 Seton Hall Const. L. J. 173 (Fall 1998). Comment, _Redefining the Parameters of Title VII in Accordance with Equal Protection Standards: The United States Supreme Court's Recognition of Same-Sex Sexual Harassment as a Form of Discrimination_, 9 Seton Hall Const. L. J. 123 (Fall 1998). David, Paul A., _What is "Sex"? Heterosexual-Male-on- Heterosexual-Male Sexual Harassment Actions After_ Oncale v. Sundowner Offshore Services, Inc., 71 So. Cal. L. Rev. 1341 (Sept. 1998). Lorieau, Pierre J., Reno v. ACLU_: Champion of Free Speech or Blueprint for Speech Regulation on the Internet?_, 7 J. L. & Policy 209 (1998). Lovell, Amy, _"Other Students Always Used to Say, `Look at the Dykes'": Protecting Students from Peer Sexual Orientation Harassment_, 86 Cal. L. Rev. 617 (May 1998). Maisano, Dominic F., _Obscenity Law and the Internet: Determining the Appropriate Community Standard After_ Reno v. ACLU, 29 U. Toledo L. Rev. 555 (Spring 1998). Norton, Patrick J., _Is_ Equality Foundation_ the Latest Chapter in America's Culture War?_, 48 Case West. Res. L. Rev. 903 (Summer 1998). Note, _Same-Sex Sexual Harassment is Actionable Under Title VII of the Civil Rights Act of 1964: Is This the End of Horseplay As We Know It?_, 29 Seton Hall L. Rev. 787 (1998). Recent Cases, _Constitutional Law - First Amendment - Fourth Circuit Rules That a Teacher's Selection of School Curriculum Is Not Protected Speech. - _Boring v. Buncombe County Board of Education_, 136 F.3d 364 (4th Cir.) (en banc),_ cert. denied_, 119 S.Ct. 47 (1998). (Teacher selected play involving lesbian character for performance by high school students). Starr, Karla J., _Adoption by Homosexuals: A Look at Differing State Court Opinions_, 40 Ariz. L. Rev. 1497 (1998). Taft, Gloria F., National Endowment for the Arts v. Finley_: Challenging the Facial Challenge_, 21 Campbell L. Rev. 81 (Winter 1998). _Specially Noted:_ Symposium on the Jurisprudence of H.L.A. Hart, 52 SMU L. Rev. No. 1 (Winter 1999). Prof. Hart was a prominent participant in the debate over decriminalization of consensual sodomy in England during the 1960s, and one of the symposium articles directly addresses this issue: Hamish Stewart, _Legality and Morality in H.L.A. Hart's Theory of Criminal Law_, 52 SMU L. Rev. 201 (Winter 1999). * * * We've received a publication notice for _Advising Gay and Lesbian Clients - A Guide for Lawyers_, by Martin Bowley, QC; Laura Cox, QC; Anne Barlow, Matthew Davies, Wesley Gryk, Angus Hamilton, Peter Smith, and Mark Watson. The publisher is Butterworths, and the publication date is Feb. 1999. The book is written by leading lesbian/gay attorneys in the U.K. AIDS & RELATED LEGAL ISSUES: Colker, Ruth, _The Americans With Disabilities Act: A Windfall for Defendants_, 34 Harv. Civ. Rts. - Civ. Lib. L. Rev. 99 (Winter 1999) (conjecture on how _Bragdon v. Abbott_ may change the dismal outlook for plaintiffs in ADA employment litigation). Ferguson, Laura, Marisol Perez, and Scott Burris, _Syringe Exchange in Pennsylvania: A Legal Analysis_, 8 Temple Pol. & Civ. Rts. L. Rev. 41 (Fall 1998). Gostin, Lawrence, Chai Feldblum and David Webber, _Disability Discrimination in America: HIV/AIDS and Other Health Conditions_, 281 Amer. Med. Assoc. J. 745 (1999). Marquart, James W., Victoria E. Brewer, Janet Mullings, and Ben M. Crouch, _The Implications of Crime Control Policy on HIV/AIDS- Related Risk Among Women Prisoners_, 45 Crime & Delinquency 82 (Jan. 1999). Miller, Paul Steven, _Disability Civil Rights and a New Paradigm for the Twenty-First Century: The Expansion of Civil Rights Beyond Race, Gender, and Age_, 1 U. Pa. J. Labor & Emp. L. 511 (Fall 1998). Silverman, Sam, _The ADA Interactive Process: The Employer and Employee's Duty to Work Together to Identify a Reasonable Accommodation Is More Than a Game of Five Card Stud_, 77 Neb. L. Rev. 281 (1998). Simon, Howard A., and Alison J. Morbey, _The ADA's "Interactive Process" for Determining Reasonable Accommodation: How Much Interaction is Enough?_, 24 Employee Rel. L. J. 5 (Summer 1998). Wit, Adam C., _Should "Mitigating Measures" Be Considered in the "Disability" Analysis Under the ADA?_, 24 Employee Rel. L. J. 73 (Summer 1998). Wojcik, Mark E., _On the Sudden Loss of a Human Rights Activist: A Tribute to Dr. Jonathan Mann's Use of International Human Rights Law in the Global Battle Against AIDS_, 32 John Marshall L. Rev. 129 (Fall 1998). _Student Notes & Comments:_ Casenote, Bragdon v. Abbott_, 118 S.Ct. 2196, 9 Seton Hall Const. L. J. 241 (Fall 1998). Contreras, Michelle M., _New York's Mandatory HIV Testing of Newborns: A Positive Step Which Results in Negative Consequences for Women and Their Children_, 20 Women's Rts. L. Rep. 21 (Fall/Winter 1998). Davis, Christine Spinella, _Asymptomatic HIV Under the ADA: The Invisible, Yet Legitimate Disability_, 15 J. Contemp. Health L. & Pol. 357 (Fall 1998). Hankinson, Kymberly D., _Navigating Between a Rock and a Hard Place: An Employer's Obligation to Reasonably Accommodate the Disabled in the Unionized Workplace_, 15 J. Contemp. Health L. & Pol. 245 (Fall 1998). Hoppe, Susan B., _Broad Statutory Language is Not Ambiguous: The Americans With Disabilities Act Applies in State Prisons_, 15 J. Contemp. Health L. & Pol. 275 (Fall 1998). Mathes, Robert C., _Civil Rights - The Status of Persons Infected with Asymptomatic HIV Under the Americans With Disabilities Act of 1990 After_ Bragdon_: Did the Supreme Court Miss an Opportunity to Protect Disabled Americans?_ Bragdon v. Abbott_, 118 S.Ct. 1196 (1998)_, 34 Land & Water L. Rev. (U. Wyoming Coll. L.) 237 (Fall 1998). Note, Runnebaum v. NationsBank of Maryland_: Asymptomatic HIV Finds No Refuge in the Fourth Circuit's Workplace_, 8 Temple Pol. & Civ. Rts. L. Rev. 243 (Fall 1998). _Specially Noted:_ Symposium on Physician-Assisted Suicide, 14 Issues in L. & Med No. 3 (Winter 1998). EDITOR'S NOTE: All points of view expressed in _Lesbian/Gay Law Notes_ are those of identified writers, and are not official positions of the Lesbian & Gay Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in _Publications Noted_ are attributable to the Editor. Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing. Please address correspondence to the Editor or send via e-mail. * * * Copies of the 1998 Law Notes Case Table are available from the Law Notes circulation manager.