Lesbian/Gay Law Notes 2004 Case Table as of April 14, 2004 (thru April Law Notes) Compiled by Audrey Weinberger, NYLS '05 Allen v. Mineral Fiber Specialists, Inc. (E.D. Pa., Jan. 30, 2004) (not reported anywhere) (granting summary judgment to defendant in a same-sex harassment case brought under Title VII by employee, Allen) Anonymous v. Anonymous, NYLJ, Feb. 27, 2004, p. 18, col. 3.(N.Y. County) (ruling that a written agreement between a gay male couple governing their ownership interest in a co-op loft apartment was an enforceable contract). Ashmore v. J.P. Thayer Co., Inc., 2004 WL 343521 (M.D. Ga., Feb. 20, 2004) (finding something unusual: a same-sex harassment case that seemed, on the merits, to be actionable under Title VII except…because the employer had responded reasonably promptly when the plaintiffs finally complained about the harassment after enduring it for several months, and eventually discharged the harasser, and the plaintiffs suffered no tangible workplace injury or retaliation, the court found that the employer could not be held vicariously liable for a male supervisor's creation of a hostile work environment for the two male plaintiffs). Blanco, State of Florida v., 2004 WL 86646 (Fla. App. 4th Dist., Jan. 21, 2004) (made a judicial finding that a drug agent was a "very attractive man," and that the defendant was a lonely gay man in a gay bar looking for attention, leading the appeals court to uphold the trial court's dismissal of the drug sale prosecution on entrapment grounds). Blas, U.S. v., 2004 WL 308130 (11th Cir., Feb. 19, 2004) (unanimously affirming a 15- year prison term for an HIV+ man found guilty of using the internet to entice two teenage girls to meet him for sex and of actually having had sex with one of them). Boy Scouts of America v. Wyman, (March 8, 2004) (denial of certiorari in Boy Scouts of America v. Wyman, 335 F3d 80 (2nd Cir. 2003) in which the court of appeals affirmed a ruling by the U.S. District Court in Connecticut, upholding the decision of Connecticut officials to exclude the Boy Scouts of America from the State Employee Charitable Campaign because the BSA's membership rules discriminate on the basis of sexual orientation, in violation of Connecticut public policy). Cain, United States v., 2004 WL 547549 (U.S.Ct.App. Armed Forces, March 19, 2004) (voting 4-1 that Sergeant Billy E. Cain was deprived of effective assistance of counsel when he was being court-martialed on charges of forcible sodomy, as his lead counsel, identified in the opinion as Major S, had initiated a sexual relationship with Cain during the representation). California v. Caldwell, 2004 WL 226198 (Cal.App. 2 Dist. Feb. 6, 2004) (not officially published) (affirming a judgment after jury trial of second degree murder against Charles Caldwell, who hacked Richard Sconiers to death after the two of them had sex several times over the course of a weekend). Carter v. Lowndes County, 27 NDLR P. 148, 2004 WL 393333 (5th Cir., Jan. 23, 2004) (not officially published), (per curiam opinion ruling that segregation of prisoners with AIDS was penologically appropriate, as was barring them from attending religious services with general population prisoners). Catholic Charities of Maine, Inc. V. City of Portland, Civil No. 03-55-P-H (U.S.Dist.Ct., D. Maine, Feb. 6, 2004) (rejecting a 1st Amendment challenge to a Portland, Maine, ordinance requiring certain city contractors to provide domestic partnership benefits, but found that the ordinance was partly preempted by federal law, thus cutting down the range of benefits it could require). Caudillo v. Lubbock Independent School District, 2004 WL 389073 (March 3) (Pursuant to the federal Equal Access Act, a public school that receives federal funds and allows any non-curricular student group to meet on campus during non-instructional time must make its facilities available on an equal basis to all such clubs irrespective of their viewpoint. Ignoring the numerous federal court decisions that have interpreted the EAA as supporting the right of students to form gay-straight alliances (GSAs), U.S. District Judge Sam R. Cummings (N.D. Tex.) threw out the claims of a GSA that was prevented from meeting on school grounds, posting flyers and announcing group meetings over the loudspeaker). Christiana v. Southern Baptist Hospital, 2004 WL 308115 (La. Ct. App., 4th Cir., Feb. 4, 2004) (vacating a grant of partial summary judgment by the Civil District Court of Orleans Parish and holding that defendant was not subject to strict liability for distributing HIV-tainted blood to the plaintiff in the course of medical treatment in 1984). Conner v. Atlantic Mutual Insurance Co., 2004 WL 74463 (Mass. App.Ct. Jan. 16, 2004) (holding a lack of evidence of legal adoption, the court agreed with an insurance company and refused to recognize natural rights regarding a claim by three sisters who sought damages from the estate of Matthew Richmond, who had died from complications arising from AIDS after they cared for him during his illness). Connor, People v., 2004 WL 60763 (Cal.Ct.App., 2nd Dist., Jan. 14, 2004) (affirming the conviction of Eddie Boyd Connor for the torture and murder of Donald Randall). Cowdery v. City of Seattle, 2004 WL 49851 (Wash. Ct.App., Jan. 12, 2004) (unpublished decision) (upholding a jury verdict against a Seattle police officer who sued over emotional distress after aiding victims of a bus accident, one of whom tested positive for HIV. The plaintiff, Daniel Cowdery, has not tested positive). Daniels, Application of Gena Michele, 2003 WL 23204297, 2003 N.Y. Slip Op. 23954 (N.Y. City Civ. Ct., Dec. 31, 2003) (J. Feinman approving a change of surname for the applicant so she would have the same surname as her same-sex domestic partner). DiMarco v. Wyoming Department of Corrections, 2004 WL 307421 (D. Wyoming Feb. 18, 2004) (ruling that state prison officials violated the 14th Amendment Due Process rights of plaintiff when they consigned her to 14 months in a dungeon-like high security lock-up without affording any kind of hearing process for her to challenge that decision). Doe v. Dilling, No.00L5079 (Cook Co. Ill. Cir.Ct., March 15, 2004) (National Law Journal reported that a Chicago jury awarded $2 million to an HIV+ woman, identified in court papers as Jane Doe, on her fraud claim against the parents of her late fiancé, Albert Dilling, who died from AIDS in 1999 and did not disclose his HIV status to her at the start of their relationship). Downey v. Schneider, NYLJ, 2/18/2004, p. 24, col. 1, (Nassau County Supreme Court Feb. 9, 2004) (ruling a Catholic seminary's decision to dismiss a homophobic student who had threatened to go public with his criticism of what he considered the pro-gay slant of the school's teachings did not violate the school's contract with the student). Galland v. Meridia Health System, Inc., 2004 WL 573831 (Ohio. App., 9th Dist., March 24, 2004) (not reported in N.E.2d) (unanimous three-judge panel reversing the grant of summary judgment in an AIDS phobia case and holding that plaintiff had an actual physical injury which could be the predicate for an emotional distress claim after sustaining a puncture wound from a suture needle, regardless of whether plaintiff was infected with HIV). Greene v. Bowles, 2004 WL 502324 (6th Cir., March 16, 2004) (reversing the district court and holding that a transsexual prisoner in Ohio has the right to a trial of her claim that the prison warden violated her 8th Amendment right to be free of cruel and unusual punishment by knowingly placing her in a position to be physically assaulted by another prisoner). Goodridge v. Department of Public Health, 723 N.E.2d 1 (Mass., Nov 2003).Opinions of the Justices to the Senate, 2004 WL 202184 (Mass., Feb. 3, 2004) (four members of the Massachusetts Supreme Judicial Court told the state Senate that its proposed Civil Union Law is unconstitutional because it would bar same-sex partners from marrying, reaffirming their November 2003 decision in Goodridge, which held that the equality requirements imposed by the state constitution mandated that same-sex partners be allowed to marry on the same basis as opposite-sex partners). Gormley v. Robertson, 83 P.3d 1042 (Wash. Ct. App., 3d Div., Feb. 3, 2004) (holding that a court may apply the "meretricious relationship" doctrine when dividing the assets and liabilities of a same-sex couple whose relationship has ended). Hernandez v. Bankers Trust Co., 2004 WL 396259 (NY App.Div., 1st Dept., March 4, 2004) (unanimously rejecting a sexual orientation discrimination claim by plaintiff, an at- will computer technician, who said anti-gay comments directed against him after he jokingly changed the screen email name of an African-American employee to "White Girl," and mentioned to other employees that he should have changed it to "Ghetto Girl"). Hogue v. Hogue, 2004 WL 34510 (Tenn. Ct.App., Jan. 6, 2004) (ruling that a chancery court's order to a gay father in a pending divorce case restraining him from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle was not specific enough to justify sentencing the father to two days in jail for contempt for having told his son that he is gay). Hogue v. Hogue, 2004 WL 578593 (Tenn. Ct.App., March 24, 2004) (reversing a trial court ruling that Joseph Hogue may not "expose" his son to his "gay lifestyle" pending final resolution of divorce proceedings in which custody and visitation are at stake). Holian, People v., 2004 WL 171577 (Cal.Ct.App., 1st Dist., 2nd Div., Jan. 29, 2004) (not officially published) (holding that a threat of AIDS not a deadly weapon without actual proof of AIDS where defendant used his teeth to bite another and then proclaimed he was HIV+ even though it turned out he was not). Hosseinipour v. State Medical Board of Ohio_, 2004 WL 503941 (not officially published)(Ohio Ct.App., 10th Dist., March 16, 2004) (denying unanimously a claim for reinstatement of an HIV+ plaintiff's medical and surgical license after his license was permanently revoked in 1999 by the state medical board after he had begun to act strangely due to encephalopathy ). Jones v. Potter, 2004 WL 123415 (D.D.C., Jan. 22, 2004) (finding that summary judgment should be granted to the defendant on the ground that plaintiff had failed to sufficiently allege the elements of a hostile environment claim; however, finding that plaintiff had raised a valid factual issue concerning the sexual orientation of his harasser). Koebke v. Bernando Heights Country Club, 10 Cal. Rptr. 3d 757 (Cal. App. 4th Dist., Div. I, March 8) (ruling that private businesses can lawfully refuse to provide domestic partners with benefits provided to married couples and affirming a lower court's ruling that California's civil rights law does not prohibit marital status discrimination). Lankford v. BorgWarner Diversified Transmission Products, Inc., 2004 WL 540983 (S.D.Ind., March 12, 2004) (granting judgment on the pleadings against a male employee who pursued a claim of discrimination based on sex under Title VII of the Civil Rights Act of 1964, ruling that the wrongs alleged related to sexual orientation and not gender discrimination). Li v State of Oregon, (Multnomah Cir.Ct, March 12, 2004) (lawsuit initiated by the ACLU in Multnomah County to decide whether gay will win the right to marry). Limon, State of Kansas v., No. 85,898 (Kan.Ct.App., Jan. 30, 2004) (voting 2-1 to reject a challenge to the lengthy prison sentence imposed on Matthew R. Limon, who was found at age 18 to have engaged in oral sex with a 14-year-old who was a fellow resident of an institution for developmentally disabled youth). Lofton v. Secretary of the Dep't of Children and Family Services, 2004 WL 161275 (11th Cir., Jan. 28, 2004) (ruling that Florida's statutory ban on gay people adopting children is constitutional). Lofton v. Kearney, 2004 WL 161275 (Jan. 28), (ACLU of Florida petitioned the 11th Circuit Court of Appeals on Feb. 17 to reconsider its decision in Lofton). Martin M., In re, 2004 WL 370762 (Cal.Ct.App., 6th Dist., March 1, 2004) (holding that treating the offense of oral copulation with a minor as a felony violates equal protection because the companion statute, dealing with sexual intercourse with a minor, treated that crime as a misdemeanor). Matter of Adoption of Infant K.S.P. and Infant J.P., 2004 WL 557346 (Ind. Ct.App., March 23) (ruling that a lesbian co-parent may adopt her same-sex partner's biological child without extinguishing the partner's parental rights, if that is in the best interests of the child). Matter of Adoption of Carolyn B., 2004 WL 575028, 2004 N.Y. Slip Op. 01860 (N.Y.App.Div, 4th Dept, March 19, 2004) (Answering a question of first impression in New York, a 3-2 majority ruled that an unmarried adult couple may jointly adopt a child). Matter of N., NYLJ, 3/29/2004, p. 19 (Richmond County Family Court) (holding that same-sex couple may joint adoption). McGrath v. Toys "R" Us, Inc., 2004 WL 111966 (2nd Cir., Jan. 23, 2004) (certifying a question to the New York Court of Appeals concerning whether court awarded substantial attorneys fees would be justified as a matter of New York Law considering that jury awarded only nominal damages to the plaintiffs). Miguel, US v., 2004 WL 193250 (9th Cir., Jan. 30, 2004) (unpublished disposition) (rejecting the appeal of a second degree murder conviction in the U.S. District Court in Arizona, which included "a special jury finding that the murder was motivated in substantial part by the victim's actual or perceived sexual orientation"). Muriel v. St. Barnabas Hospital, 2004 WL 78349 (N.Y.App.Div., 1st Dept., Jan. 20, 2004) (approving the restoration to the active trial calendar of a case that had been dismissed as abandoned, in which the plaintiff claimed she was given a false AIDS diagnosis after a spinal tap procedure, resulting in the destruction of her marriage). Newton, People v., 2004 WL 25314 (Cal. Ct. App., 5th Dist., Jan. 5, 2004) (not officially published) (rejecting defendant's appeal regarding his earlier agreement to take an AIDS test after being convicted of committing a lewd and lascivious act on a minor, to wit, placing one of his hands inside a girl's panties and holding onto her vagina). Notch, Civil Commitment of Steven George, 2004 WL 61061 (Minn.App., Jan 13, 2004) (unpublished opinion) (affirming the commitment of a paranoid schizophrenic after he had been committed as mentally ill and dangerous subsequent to serving his second- degree murder sentence for the 1986 killing of his roommate, based on his irrational belief that the roommate was planning to rape him). Officer, People v., 2004 WL 326929 (Cal. Ct. App., 4th Dist., Feb. 23, 2004) (affirming the conviction of William Blade Officer on charges of sodomy of an unconscious victim and assault as a lesser included offense of a charged assault by means likely to produce great bodily injury). Ornstein v. New York City Health and Hospital Corp., NY Law Journal, Jan. 22, 2004 (N.Y.SupCt., N.Y. County) Justice Sheila Abudus-Salaam) (ruling that a nurse who worked for a New York City hospital can sue the hospital for negligence as a result of an incident where she sustained a needle-stick injury while caring for an HIV-infected prisoner from Riker's Island and rejected the city's argument that it would be unreasonable for nurse Ornstein to continue suffering emotional distress from the incident when she had tested HIV-negative six months after it occurred). Pennsylvania v. Bey, 2004 WL 63924 (Pa. Super. Jan. 15, 2004) (reversing a trial court decision that had ruled that a gay man who had used his position in a convalescent home to commit sexual acts with a comatose quadriplegic was shown to be a sexually violent predator (SVP), warranting enhancement of his sentence). Peterson v. Hewlett-Packard Co., 2004 WL 26580 (9th Cir., Jan. 6, 2004) (unanimously rejecting a discrimination claim by a religious homophobe whose insistence on posting anti-gay materials in the workplace earned him a discharge for violating his employer's diversity policy and affirming that employers have a right to include toleration for gay people as part of their diversity policies). Pointdujour v. Mount Sinai Hospital, 2004 WL 110617 (S.D.N.Y., Jan. 20, 2004) (dismissing with prejudice a claim of unlawful retaliation in response to charges of same- sex harassment, finding that under the circumstances the employer could reasonably condition the plaintiff's return to work on her achieving a clearance from the employer's Employee Assistance Program). Ramirez v. N.Y. State Division of Human Rights, 2004 WL 527146 (N.Y.App.Div., 1st Dept., March 18, 2004) (holding that there was no probable cause for plaintiff's complaint of HIV-related employment discrimination case). Rederford v. City of Oakland, (N.D. Cal., March 23, 2004) (refusing to dismiss a lawsuit filed against the city of Oakland by two city employees claiming that their freedom of speech was violated when supervisors removed their flyers announcing the formation of a religious club to promote the "natural family" in opposition to same-sex marriage). Reyes v. Barnhart, 2004 WL 439495.(S.D.N.Y., March 9, 2004) (holding that an HIV diagnosis is not an automatic pass to Supplemental Social Security benefits and sustaining the Commissioner's determination that he was not disabled within the qualification requirements of the program). RGIS Inventory Specialist v. Hawai'i Civil Rights Commission, 2004 WL 516578 (Haw. Sup.Ct., March 17, 2004) (ruling that the state's first circuit court had appropriately overturned a declaratory order by the Hawaii Civil Rights Commission in which the Commission ruled that its jurisdiction over sex discrimination claims included discrimination claims by transsexuals). Roberts, State v., 2004 WL 384192 (Ohio App., 9th Dist. March 3, 2004), (sustaining conviction of an HIV+ man for having sexual relations with two different women without disclosure). Roberts, State of Ohio v., 2004 WL 384192 (Ct. App. Ohio, 9th Dist., March 3, 2004) (rejecting Roberts' appeal of his felonious assault conviction based on engaging in sexual intercourse without disclosing his HIV status). Roe v. City of San Diego, 2004 WL 177850. (9th Cir., Jan. 29, 2004) (holding that a San Diego, California, police officer who, during his off-duty time, made videotapes of himself stripping off a generic police officer's uniform and then masturbating, and then selling the videotapes on the adult section of eBay, had engaged in expressive conduct that falls within the protected category of citizen comment on "matters of public concern" and was thus protected by the free speech clause of the first amendment). S.D. Myers v. City of San Francisco, 253 F.3d 461 (9th Cir. 2001) (U.S. Supreme Court denied a petition for certiorari for seeking a review of the constitutional status of San Francisco's Equal Benefits Law, which forbids awarding most city contracts to companies that do not provide domestic partnership benefits for their employees). Salucco v. Alldredge, reported in 365Gay.com, March 25; Boston Globe, March 25) (asserting that the equitable powers of the court were sufficient to approve the judicial dissolution of a Vermont Civil Union). Sexton v. Commonwealth of Kentucky, 2004 WL 102481 (KY, Jan. 22, 2004) (reversing the murder conviction of Chester Slim Sexton, who claimed he was defending himself from a sexual assault when he killed or contributed to the death of David Pepper). Sharon S. v. Superior Court, 2004 WL 304340 (Cal. 4th Dist., Feb. 18, 2004) (issuing an opinion dealing with certain lingering legal questions from the 2003 opinion and holding that the document that the women signed did not fully comply with joint legal representation, but held that this did not decide the issue whether the consent was valid). Singson, Commonwealth v., reported in the Virginian-Pilot & Ledger Star, Feb. 18 (If private consensual sodomy is legal, can the state outlaw public solicitation to engage in it? That proposition will be tested in this case in which Circuit Judge Frederick B. Lowe sentenced the defendant, alleged to have solicited a plainclothes police officer in a public restroom, to six months in prison). Sorey, U.S. v., 2004 WL 49093 (U.S. Navy-Marine Corps Ct.Crim.App, Jan. 8, 2004) (unpublished decision) (unanimously upholding the sentence on remand that had been given to Yeoman 3rd Class David Sorey, an HIV+ man convicted of failure to obey an order, aggravated assault, and "breaking restriction" for having sexual intercourse without a condom without disclosing his HIV-status to his female sexual partner, in violation of a "safe-sex order" he had been given when he was diagnosed). Suesbury v. Caceres, 2004 WL 97625 (D.D.C., Jan. 22, 2004) (affirming a decision by trial judge Joan Zeldon that a doctor did not violate an HIV+ patient's confidentiality rights by discussing his infectious condition with another doctor in the same medical practice who had also rendered services to the plaintiff and was accused by the plaintiff of molesting him). Swidriski v. City of Houston, Houston Chronicle (Feb. 5, 2004) (granting a motion by the city of Houston to dismiss an equal protection claim against the city by Gloria Swidriski, whose son, Marc Kajs, was murdered in full view of patrons of a restaurant where he worked by his former lover, Ilhan Yilmaz, who then committed suicide). Travis D., In re, 2004 WL 45170 (Cal.Ct.App., 3rd Dist., Jan. 9, 2004) (not officially published) (finding that the trial court should not have expressed views about the procedure by which same-sex domestic partners might adopt a child, when it was conducting a hearing on the adoptibility of a seven-year old child who was going to be placed with such a couple). Townsend v. American Express Financial Corporation, 2004 WL 45501 (D. Minn. Jan. 5, 2004) (declinig to assert jurisdiction over a sexual orientation employment discrimination claim that was brought on behalf of plaintiff, an African-American man, as a supplemental claim to his race discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964). Woodson v. State, 2004 WL 40521 (5th Dist. Ct.App., Jan. 9, 2004) (ruling that a man who pled nolo contendere to a charge of lewd and lascivious battery had violated the terms of his probation by, among other things, failing to submit promptly to an HIV test and reveal the results to his victim). Yekimoff v. Seastrand, 2004 WL 556707 (D.N.H. March 19, 2004) (dismissing a series of claims of alleged discrimination on the basis of sexual orientation and HIV status, as well as race and national origin after the court held that all claims lacked sufficient evidence or suffered from technical pleadings). International Cases: In an advisory opinion issued at the request of the Court of Appeal of England and Wales (Civil Division), the European Court of Justice ruled that British law was incompatible with the European Convention of Human Rights and Fundamental Freedoms, a treaty signed in Rome in 1950, to the extent that British law prevents a heterosexual couple, one of whom is transsexual, from fulfilling the requirements to enable one to qualify his or her partner for a survivor=s pension. _K.B. and National Health Service Pensions Agency, Secretary of State for Health, Case C-117/01 (January 7, 2004). (The opinion is available on the court=s website: http://www.curia.eu.int/jurisp/) Kempling v. British Columbia College of Teachers, 2004 BCSC 133 (Feb. 3, 2004) (available at http://www.courts.gov.bc.ca) (Mr. Justice Holmes of the Supreme Court of British Columbia (a trial court) upheld an administrative finding of "conduct unbecoming a member of the College of Teachers, and a one- month suspension from teaching, because Kempling, a high school teacher and guidance counsellor, had had the Quesnel Cariboo Observer publish a variety of anti-LGB statements in a guest editorial and a series of letters to the editor. Montreuil & Canadian Human Rights Commission & National Bank of Canada, 2004 CHRT 7 (Feb. 5, 2004) The Canadian Human Rights Tribunal ruled that the National Bank of Canada engaged in unlawful sex discrimination when it rejected an employment application from a male-to-female transsexual. Ligue Catholique pour les droits de l'homme (Catholic League for Human Rights) v. Michael Hendricks & Rene LeBoeuf (Quebec Ct.App., March 19, 2004) (available in French: http://www.jugements.qc.ca/primeur/documents/liguecatholique-19032004.doc) (upholding and accelerating the Sept. 6, 2002 judgment of Madam Justice Louise Lemelin of the Quebec Superior Court (District of Montreal), which struck down the federal definition of marriage for Quebec (as sexual orientation discrimination violating Section 15(1) of the Canadian Charter) from Sept. 6, 2004 (if the federal Parliament did not act in the interim).