LESBIAN/GAY LAW NOTES
ISSN 8755-9021 December 1999
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: firstname.lastname@example.org or email@example.com
Contributing Writers: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran, Esq., New York City; Steven Kolodny, 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; Robert Wintemute, Esq., King's College, London, England.
Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: firstname.lastname@example.org
SOUTH AFRICA CONSTITUTIONAL COURT RECOGNIZES SAME-SEX COUPLES FOR IMMIGRATION PURPOSES
In an unanimous ruling issued Dec. 2 in _National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs_, Case CCT 10/99, the Constitutional Court of South Africa decided that the country's immigration law had to be changed in order to recognize same-sex couples as having essentially the same immigration rights as legal spouses. The ruling was based on provisions of the South African constitution that ban sexual orientation and marital status discrimination (section 9) and that guarantee human dignity to all residents of the country (section 10).
In an opinion for the Court, Justice Laurie Ackermann relied heavily on precedents from Canada, the United Kingdom, and New York in determining that same-sex couples could form families that were entitled to equal treatment under the law. Ackermann prominently cited the decision by the New York Court of Appeals in _Braschi v. Stahl Associates Company_, 74 N.Y.2d 201, 543 N.E.2d 49, 544 N.Y.S.2d 784 (N.Y. 1989), a tenants rights case, as an example of judicial recognition of same-sex couples as families.
The case was brought by the National Coalition for Gay and Lesbian Equality, six non-South Africans who are partners with South Africans, their six partners, and the Commission for Gender Equality. The National Coalition had actually been successful at first in getting "waivers" of the normal immigration rules for several gay applicants, but as the number of requests for such applications increased, the Ministry of Home Affairs determined that it was not plausible any longer to treat same-sex couples as presenting "special circumstances," the ground under which the immigration law gives the Ministry authority to waive normal requirements, and refused to process any more or to renew the one-year waivers it had issued, thus leading to this lawsuit.
Justice Ackermann's summary of his holding says it all, quite concisely: "Section 25(5) of the Aliens Control Act 96 of 1991, by omitting to confer on persons, who are partners in permanent same-sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the Republic [of South Africa]. Such unfair discrimination limits the equality rights of such partners guaranteed to them by section 9 of the Constitution and their right to dignity under section 10. This limitation is not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom and accordingly does not satisfy the requirements of section 36(1) of the Constitution. This omission in section 25(5) of the Act is therefore inconsistent with the Constitution.
"It would not be an appropriate remedy to declare the whole of section 25(5) invalid. Instead, it would be appropriate to read in, after the word `spouse' in the section, the words `or partner, in a permanent same-sex life partnership.' The reading in of these words comes into effect from the making of the order in this judgment."
This summary follows a lengthy discussion of how the legal status of families has been evolving in South Africa and abroad, quoting extensively from Canadian Supreme Court decisions in particular, and an analysis that rejects the government's contention that immigration rights should be limited to legal spouses as a way of "protecting" the family.
Perhaps most interesting is Ackermann's treatment of the issue of procreation as it relates to family recognition. The government, as governments elsewhere have done, had argued that limiting family recognition to opposite-sex couples was justified by the connection between marriage, procreation, and the raising of children. After observing that "nothing prevents a gay or a lesbian couple, one of whom has so adopted a child, from treating such child in all ways, other than strictly legally, as their child," Ackermann stated:
"From a legal and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships. Such a view would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. I would even hold it to be demeaning of a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy."
As to the argument that same-sex partners are so distinguishable from opposite-sex spouses that no equality violation arises from their differential treatment, Ackermann concluded that same-sex partners "are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses."
Ackermann's opinion is significant not only for finding that the immigration law unconstitutionally discriminates on grounds of sexual orientation and marital status, but also for breaking new ground in South African constitutional law by adopting the process of "reading in" to cure a constitutional defect. This is not a process used by U.S. courts, but it has been repeatedly used by the Supreme Court of Canada in its decisions dealing with gay rights issues, most notably in "reading in" a ban on sexual orientation discrimination as part of the Canadian Charter of Rights. As is customary in countries that are part of the English Commonwealth, the South African court freely cites and relies on decisions by the highest courts of other Commonwealth nations, including Canada.
Ackermann pointed out that when a statute is found unconstitutional, the court has an option to strike it down in its entirety, or, if the unconstitutional feature is severable from the rest, to strike that feature down and preserve the rest. Why not, he asked, also include in the court's remedial arsenal the possibility of revising the faulty provision so as to cure its constitutional defect? The lower court had refrained from doing this, shying away from performing a legislative function, at least in part because of the difficulty of deciding upon the precise language to describe those couples that would be entitled to immigration recognition. But Ackermann was not daunted by the problem, writing that it was enough to read in a recognition for permanent same-sex partnerships, accompanied by a judicial explanation of the factors to be considered in determining whether any particular partnership qualified. If this left ambiguities, the legislature could surely follow along with a more detailed definition, so long as it did not impose limitations or conditions that offended the constitutional equality requirement.
Although a decision by the South African Constitutional Court has no legal effect in the U.S., the stirring language of Ackermann's ruling, especially in its discussion of how refusal to accord recognition to same-sex families in the context of immigration undermines the human dignity of gay people, will undoubtedly contribute to the growing consensus in the international human rights community that same-sex partners are entitled to the same treatment as spouses for an increasing range of benefits and rights. As the U.S. participates as a treaty partner with countries that have adopted more advanced views of gay rights, there may come a time when such developments prove influential with American legislatures and courts. At least one can hope... A.S.L.
LESBIAN/GAY LEGAL NEWS
Federal Court Rejects Gay Discrimination Claim Against Blockbuster
A former employee of Blockbuster Entertainment who alleged that he was fired because he is gay recently lost the first stage of his legal battle against the company. _Bartalini v. Blockbuster Entertainment, Inc._, 1999 WL 1012383 (N.D.Cal., Nov. 8). U.S. District Judge Judge Conti concluded that the plaintiff failed to establish the elements of a prima facie case of sexual orientation discrimination under California state law. The court also ruled that the company's failure to follow its own progressive discipline policy was not legally actionable, since Bartalini was an at-will employee. The court granted Blockbuster's summary judgment motion and dismissed all five of plaintiff's causes of action, including those for breach of contract and tortious infliction of emotion distress.
Bartalini earned a generally favorable reputation as a manager at one of Blockbuster's music stores. He received several merit awards and generous raises and bonuses during his four-year tenure with the company. However, on one occasion, an employee complained to the company's human resources hotline that Bartolini did not permit him to take daily breaks because other staff members routinely arrived late for work. According to the company, Bartalini was fired because he allowed this problem to persist, and continued to refuse breaks to his staff.
Bartalini argued in his complaint that the reason given for his termination was a ruse. First, Bartalini alleged that no one was discharged or disciplined at other Blcokbuster locations, where the very same problems concerning employee breaks existed. Bartalini also pointed out to the court that Blockbuster fired him without a written warning, in violation of the company's own progressive discipline policy. Bartalini argued that he was singled out to be terminated because of his sexual orientation. Although he presented no evidence of overt homophobia, Bartalini alleged that his district manager generally "treated him with disdain" and "spoke to him in demeaning and dismissive tones." Bartalini was the only openly gay manager in the district manager's district.
Judge Conti dismissed the plaintiff's two contractual causes of action (breach of contract and breach of the covenant of good faith and fair dealings) since, according to the court, Bartalini was an at-will employee who could be dismissed even without cause.
Bartalini's argument that Blockbuster had a "well-known" policy to terminate employees only for cause was factually unpersuasive to the court, particularly since Bartalini had signed various documents when he was first hired acknowledging that he could be fired by the company without cause. The court ruled that prior raises and bonuses, and even a company's internal progressive discipline policy, were insufficient as a matter of law to change Bartalini's at-will employee status.
The court similarly found that Bartalini failed to sustain his cause of action for wrongful termination in violation of state public policy, based on sexual orientation discrimination. Bartalini presented several declarations from other Blockbuster employees in support of his claims
that his district manager was homophobic. These affidavits stated that the district manager treated Bartalini poorly and disrespectfully because he was gay. According to Blockbuster employees, the district manager was also known to treat other openly gay employees differently
from straight employees.
Nonetheless, the court concluded that Bartalini's evidence was only circumstantial, and was insufficient as a matter of law to rebut Blockbuster's position that Bartalini was terminated for a
non-discriminatory reason. According to the court, the evidence presented by Bartalini did not set forth any specific behavior by the district manager showing animus towards gay employees in particular. "Many of the declarations even point out what [the district manager] was inconsiderate, rude, and obnoxious to other employees, and even to some customers," the court noted. The court also emphasized evidence from Blockbuster which showed that the decision to fire Bartalini was not made by the district manager, but by two other members of Blockbuster management, one of whom was openly gay.
Bartalini's lawsuit was originally commenced in the Sonoma County Superior Court. Tthe case was removed to federal court by Blockbuster on the basis of diversity of citizenship. _Ian Chesir-Teran_
1st Circuit Rejects Gay Alien's Appeal of Deportation Order
The U.S. Court of Appeals for the First Circuit has dismissed the appeal of a gay male 37-year-old citizen of Columbia, whose petition for a suspension of deportation was administratively denied. _Bernal-Vallejo v. INS_, 1999 WL 980300 (Nov. 2). The court concluded that it lacked jurisdiction under federal immigration law to adjudicate Bernal-Vallejo's claims.
Bernal-Vallejo first entered the United States in 1986. Deportation proceedings were instituted in 1995 when the INS learned that Bernal-Vallejo attempted to obtain a green card fraudulently, by posing as an agricultural worker. Barnal-Vallejo conceded deportability, but applied for a suspension of deportation. The immigration judge denied his application, concluding that Barnal-Vallejo failed to show that deportation would be "an extreme hardship" for him. On appeal, Bernal-Vallejo alleged that the administrative decision violated his 9th Amendment "natural rights," because the immigration judge failed to consider sua sponte the fact that Bernal-Vellejo, as a gay man, would face extreme hardship because of persecution of gay men in Columbia.
The First Circuit unanimously dismissed the appeal on jurisdictional grounds. According to the court, under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, courts lack jurisdiction to hear appeals of any "discretionary decision" under certain sections of the Immigration and Nationality Act at issue, including the one at issue in this case (INA sec. 244). The court was not moved by the artful pleading of Barnal-Vallejo's constitutional argument: "This claim presents nothing more than a reframed attack on the discretionary extreme hardship determination over which this court has no jurisdiction."
The 5th and 9th Circuits have also held that federal courts lack jurisdiction to review administrative determinations of "extreme hardship." Barnal-Vallejo was represented by James Hayes. _Ian Chesir-Teran_
Rhode Island Supreme Court Rules That Sodomy Repeal Voids Pending Prosecutions
The State of Rhode Island lost its appeal to the state's highest court to prosecute a pending sodomy case when sodomy was simultaneously decriminalized by the legislature. _State of Rhode Island v. Mullen_, 1999 WL 1041845 (Nov. 16). The Supreme Court of Rhode Island held, not without dissent, that the preservation of sodomy charges after repeal of the statute would be inconsistent with the intent of the legislature to decriminalize consensual sodomy.
Criminal charges were brought against Timothy Mullen, including nine counts of sodomy, under Rhode Island's "abominable and detestable crimes against nature" law. The allegations described sexual acts by Mullen involving a 16-year-old "victim." While the indictment was pending, the Rhode Island legislature amended the law by removing the sodomy- specific provisions from it. At the trial court level, a Superior Court judge dismissed the sodomy counts against Mullen on the ground that the portion of the statute prohibiting sodomy was repealed. The judged reasoned that the thrust of the repeal was to decriminalize sodomy between persons who had attained the age of consent (sixteen years) and the intent of the legislature was to end prosecutions and convictions of persons who engage on no other criminal activity conduct other than sodomy.
The state disagreed and appealed to the Rhode Island Supreme Court, arguing in part that it would not contravene the intent of the legislature to apply the general saving statute and prosecute the sodomy charges pending against Mullen.
In a per curiam opinion by Justices Weisberger, Lederberg and Goldberg, the court agreed with the superior court, stating that it was the manifest intention of the legislature to decriminalize consensual sodomy by removing the specific sodomy language therein and that such activity be regulated by the state's sexual assault law, a law providing that the age of consent is sixteen. Furthermore, the court noted another statute, regarding rules of construction, that to permit prosecution of pending indictments "would be repugnant to the statute as amended." Moreover, in rebuttal to the dissent, the court further reasoned that "it is fundamentally unfair to prosecute an individual for prior conduct that would now not constitute a violation of law. A major purpose of a criminal statute is to deter conduct deemed unacceptable..."
In a dissent longer than the opinion, Justices Flanders and Bourcier denounced the opinion as violative of the state's saving statute, a statute having the effect of "saving" criminal proceedings pending at the time of the repeal of any penal statute unless such construction would be clearly repugnant to the express provisions of the repealing statute. Flanders and Bourcier would hold that there is no clear language that the repeal meant to override that general saving statute or that to do so would be "clearly repugnant" to the repealing statute. The dissenters further argued that such logic legitimated the freeing of prisoners after the very laws under which they were convicted are later repealed, that to save pending criminal proceedings does have a deterrent effect, and that to do otherwise renders nugatory the plain language of the savings statute. _K. Jacob Ruppert_
Tennessee Appeals Court Limits Visitation Rights for Lesbian Mom
Reversing an enlightened decision by a Tennessee Chancery Court Judge, the Court of Appeals of Tennessee has imposed a restriction on the visitation rights of a lesbian mother, excluding her partner (who owns the home in which they live) from being present when she has her children for overnight visitation on weekends. _Eldridge v. Eldridge_, 1999 WL 994099 (Oct. 27) (not officially reported). The appeals court claimed that the restriction had nothing to do with the mother's sexuality.
On July 24, 1992, the Chancery Court granted a divorce for Anthony and Julia Eldridge, approving a Dissolution Agreement under which Anthony and Julia had joint custody of their two young daughters. The arrangement worked without problems for two years, but then Anthony began to cause problems about the visitation, evidently reacting to the beginning of Julia's relationship with Lisa Franklin. Julia petitioned the court to set a more formal visitation schedule, which it did. The Chancery Court rejected Anthony's attempt to get a restriction placed on visitation, either by denying overnight visitation or by requiring that Lisa not be present.
The appeals court was sharply split, voting 2-1, over whether the grant the limitations Anthony sought. Dr. Judy Millington, a counselor assigned by the court to work with the contending parties, recommended that overnight visitation continue and that Lisa be allowed to be present. The evidence offered at trial showed that Lisa and Julia used separate bedrooms and refrained from engaging in physically affectionate conduct in front of the girls. Indeed, there was testimony that the two women had ceased to have a sexual relationship for more than a year prior to the hearing, although they continued to live together as a couple.
After citing and discussing _Dailey v. Dailey_, 635 S.W.2d 391 (Tenn.Ct.App. 1982), a visitation decision involving a lesbian mother who engaged in physically demonstrative conduct with her partner in front of her child and took her child into her bed when she and her partner were naked, the court found that the facts in the Eldridge case "do not rise to the level of harmful behavior displayed by the mother" in the earlier case, but nonetheless concluded that it would restrict visitation to exclude Lisa from being present.
In his opinion for a majority of the court, Judge Houston Goddard wrote, "we do not rely on the fact that Ms. Eldridge is a lesbian." Instead, Goddard argued that Tennessee courts "commonly place reasonable restrictions on the visitation rights of heterosexual parents who engage in sexual activity with partners with whom they are not married," but never explained the relevance of this comment to this case, inasmuch as the evidence showed that Julia no longer had a sexual relationship with Lisa and slept in a separate bedroom.
This opinion drew a bluntly worded dissent from Judge Herschel P. Franks, who asserted that the majority's judgement "is wrong, because the Trial Judge is vested with wide or broad discretion in matters of child custody and parental visitation... The majority's judgment is wrong because the credibility of the witnesses is within the province of the trier of fact. . . The majority's judgment is wrong because the Trial Court's findings are entitled to a presumption of correctness..." Most importantly, Franks quoted extensively from Dr. Millington's report, and found that Anthony's evidence "was couched in homophobic opinions which lack probative value." Franks concluded by scolding the majority of the court for substituting its judgment for the trial court's judgment, "which renders it wrong on the facts and on the law."
Julia, who is represented by Michael May of Kingsport, Tennessee, could appeal this ruling to the Tennessee Supreme Court. A.S.L.
Servicemember's Pornography Evidence Admitted in Court-Martial
On September 24, the United States Court of Appeals for the Armed Forces held that a sexually explicit gay videotape and gay magazines were admissible in the consensual sodomy trial of an army sergeant. _U.S. v. Whitner_, 51 M.J. 457.
A soldier testified that he awoke in his barracks to find Sergeant Whitner sucking his penis. On questioning, Whitner told military police that he was bisexual, enjoyed oral sex with men, and found said soldier attractive, but being drunk couldn't remember whether he had committed the alleged assault. Whitner consented to a search of his room; among other things a videotape showing homosexual oral sex in a military setting was seized and admitted in evidence. Whitner's defense, which by undermining the soldier's credibility with the scientific impossibility of portions of his testimony (i.e., the sleeping-orgasm problem) got a consensual rather than forcible sodomy conviction, objected that such evidence was impermissible character evidence, irrelevant, and its probative value, if any, was outweighed by its prejudicial effect.
Judge Sullivan's opinion affirms the military judge's admission of the evidence, stating, "appellant's possession of ... homosexual materials in his ... barracks room on the day of the offense, including some depicting acts similar to those ... charged, reasonably suggests an emotional need for his committing the charged ... misconduct, i.e., his sexual desire for junior enlisted men." The materials "depicted a plan or method to secure homosexual sex from unsuspecting servicemembers. Materials suggesting sexual abuse of the superior-subordinate relationship in the military environment or
coercive sexual conduct in a military-type environment rationally support this ruling."
The opinion quotes the military judge's instruction to the jury to limit its application of the evidence to plan and motive and not to Whitner's character.
Judge Effron concurred in the admission of material specifically "suggesting sexual abuse of the superior-subordinate relationship or coercive sexual conduct in a military-type environment," but reasoned that the relevance of the magazines related "to the general sexual interests of appellant" was questionable. He concluded that if admitting the latter was erroneous it was nevertheless harmless, and concurred in the result. _Mark Major_
Congress Ends Student Financial Aid Blackmail; Frank-Campbell Amendment Modifies Policy on Military Recruitment
In a textbook example of effective behind-the-scenes legislative work, U.S. Representatives. Barney Frank (D.-Mass.) and Tom Campbell (R.-Cal.) have succeeded in modifying the infamous Solomon Amendment so as to end the federal policy of blackmailing schools into allowing military recruiters on campus by threatening to cut off federal student financial aid. Following a strategy Frank suggested last January at a meeting of the Association of American Law Schools in New Orleans, Frank and Campbell introduced an amendment to this year's Defense Appropriations Bill, which was signed into law by President Bill Clinton on Oct. 25, making clear that the Solomon Amendment does not apply to federal funds that are made "available solely for student assistance or related administrative costs." The amendment to P.L. 106-79 never mentions military recruitment, homosexuality, or anything else that might appear controversial, merely referring to the Solomon Amendment by its legislative section designation and a citation in the U.S. Code as a note to a provision on military recruitment. They were also careful to craft the amendment in such a way that it makes a permanent change in U.S. law that will survive the limited life of the current appropriations bill.
The full text of the amendment is: "SEC. 8120. During the current fiscal year and hereafter, any Federal grant of funds to an institution of higher education to be available solely for student financial assistance or related administrative costs may be used for the purpose for which the grant is made without regard to any provision to the contrary in section 514 of the Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act, 1997 (10 U.S.C. 503 note), or section 983 of title 10, United States Code." A.S.L.
James Richard Bibbee was convicted of second-degree depraved mind murder for kicking a man to death in July 1991 in response to an alleged homosexual advance. Bibbee filed a writ of habeas corpus, claiming his conviction was flawed because the initial indictment did not specify the crime for which he was ultimately convicted. The writ was denied by the federal district court in Oklahoma, and Bibbee appealed to the 10th Circuit. In an unpublished disposition in _Bibbee v. Scott_, 1999 WL 1079597 (undated), the 10th Circuit affirmed denial of the writ. While noting that conceptually second-degree depraved mind murder is not a lesser included offense of the first degree murder charge made in the indictment, the court noted that at the time of Bibbee's conviction, Oklahoma courts were treating it as a lesser-included offense, and that federal courts are not allowed in habeas proceedings to correct errors of state law unless they amount to a due process violation. In this case, the court concluded that the charges against Bibbee were sufficient to put him on notice of the issues at trial concerning his guilt or innocence.
A Naval airman was convicted of second-degree murder by a San Francisco jury for killing an older man after having allowed the man to perform oral sex on him for money. _State v. Nary_. According to the prosecution, Steven Nary, then 18, agreed to let Juan Pifarre, 54, to perform oral sex on Nary for $40, and then upon commission of the act became distraught and beat Pifarre to death. (This occurred in Pifarre's apartment.) According to Nary, he hitched a ride with Pifarre, then agreed to Pifarre's request to come to his home and have oral sex for $40. Nary testified that after they had sex, he fell asleep, but awakened to find Pifarre attempting to have anal sex with him. Nary claimed he was merely defending himself by beating Pifarre to death. The jury didn't buy it, and community activists expressed outrage at the defense tactics of trying to depict Pifarre, a well-known community activist and journalist, as a dangerous sexual predator. Nary, now 22, faces a possible life prison sentence. _San Francisco Chronicle_, Oct. 29.
Eight gay and lesbian Alaska public employees and their partners have filed a lawsuit with the assistance of the Alaska Civil Liberties Union against the state and the municipality of Anchorage, claiming that they are entitled under the constitution to receive domestic partnership benefits. According to an Oct. 28 report in the _Anchorage Daily News_, the complaint states: "The safety net that other couples in Alaska depend upon for security and financial stability in both the lives that they build together and the retirements that they plan together are denied to the plaintiff couples, merely because they are gay." The case follows upon a vote in 1998 to amend the state constitution to ban same-sex marriages, and an amendment that had previously been made to the state human rights law to overturn a court ruling that denial of domestic partnership benefits violated the statutory ban on marital status discrimination in state employment policies.
Laramie, Wyoming, District Judge Barton Voigt ruled out a "gay panic" defense in the trial of Aaron J. McKinney, accused in the murder of Matthew Shepard. Closing arguments were then held in the case when defense attorneys rested without being able to put in their evidence on that defense. The jury convicted McKinney, who then agreed to a life sentence without parole in exchange for his promise not to discuss the case publicly, in order to avoid the death penalty.
Justice Wendie I. Gershengorn of the Massachusetts Superior Court in Middlesex County has ruled that a John Doe plaintiff has a right to use public reststop areas on Route 6 on Cape Cod, even though he was placed on probation after being convicted of engaging in sexual activity in the woods near a reststop. _Doe v. DiFava_, No. 99-4037 (Oct. 28, 1999). Doe, represented by Gay & Lesbian Advocates & Defenders, sought injunctive relief against a state trooper and the troop of which he is a member when Doe was asked on several occasions by the trooper (who had been the arresting officer on Doe's sex case) to leave the rest area. The judge wrote: "It is without dispute that Doe is entitled to use public roads and rest areas without having to fear harassment by the police. While Doe is not entitled to use these rest areas for illegal conduct, Doe's actions. . . were clearly legal." The court rejected arguments by the state troopers that the injunction was not necessary, noting that officials had backed up the trooper's actions when Doe complained about them. GLAD staff attorney Mary Bonauto represented Doe in the case. _Boston Herald_, Oct. 30.
It's spin-war time as both sides seek to explain the decision by U.S. District Judge Bruce S. Jenkins to dismiss remaining claims in _East High Gay/Straight Allliance v. Board of Education_, No. 2:98CV193J (D. Utah, case dismissed, Nov. 5, 1999). In October, Jenkins had ruled that the Salt Lake City School District was briefly in violation of the Equal Access Act when it allowed some non-curricular clubs to function at one of its high schools at the same time it was refusing to allow operation of a recognized gay/straight student alliance, but that overall the District's decision to eliminate all non-curricular clubs (including the gay/straight group) was lawful. However, Jenkins had then ruled that further evidence was needed on the plaintiff's charge that the district had an unwritten, content-based rule against discussion of gay issues in the schools. At a conference in chambers on Nov. 5, when each party described the evidence it would present, Jenkins concluded that the district had no unwritten rule. Further, it appears that the district represented it would allow such discussions, consistent with a state policy banning sexual orientation discrimination. Of course, the school district praised dismissal of the charges as a victory. In a joint press release by Lambda Legal Defense, the National Center for Lesbian Rights, and the ACLU Lesbian and Gay Rights Project, attorneys for the plaintiffs claimed their own victory, asserting that the district's representations before Judge Jenkins essentially gave the students what they were seeking: the right to discuss gay issues at school. Now wrangling will commence on the issue of attorneys fees. _LLDEF, NCL, ACLU Joint Press Release_, Dec. 2; _Deseret news_, Nov. 6; _Salt Lake Tribune_, Nov. 6.
Some school officials, however, are proving surprisingly obtuse over the issue of student groups in the schools. In El Modena, California, the board of education has been procrastinating over whether to allow a gay/straight alliance to operate at the local high school. When the board put off deciding the issue one time too many, two students, Anthony Colin and Heather Zetin, represented by Lambda Legal Defense and People for the American Way, with cooperating attorneys from Irell & Manella, filed suit in U.S. District Court in Santa Ana, against Orange Unified School District. The suit notes that the district allows other non-curricular clubs to function in the schools, and invokes the Equal Access Act in support of the application to let the gay/straight alliance meet on campus. _Los Angeles Times_, Nov. 25.
This one sounds kind of fishy: The Massachusetts Commission Against Discrimination has ruled that the town of Dudley did not discriminate on the basis of sexual orientation when the selectmen voted not to reappoint Henry N. Dumas to the town police force. At the time of the vote, Dumas had been suspended from the force while facing charges of having sexually assaulted another man, of which he was subsequently acquitted. He had been a police officer in Dudley from 1978 until 1993, the time of his suspension, and the vote occurred in December 1993. The selectmen told the Commission that they didn't know Dudley was gay when they voted, and that he was not reappointed because of his disciplinary record, which included six prior suspensions. Dumas pointed out that he hadn't had a disciplinary suspension for several years prior to the 1993 incident, and that the charges against him had made it quite public that he was gay. _Worcester Telegram & Gazette_, Nov. 17.
The Colorado Attorney General's office has petitioned Boulder District Judge Roxanne Bailin to reconsider her recent decision to authorize equal parenting rights for both members of a lesbian couple. Hollie Stevenson, an assistant attorney general, wrote in the petition that state law does not "provide authority to establish the relationship of a child and more than one natural mother." Anne G. was pregnant when she and her partner, Jane K., petitioned the court for an order that upon birth both of their names be placed as parents on the birth certificate, and Bailin granted their petition on Sept. 30. On Oct. 30, Anne G. gave birth to twins. The A.G.'s office is petitioning on behalf of the State Registrar, which maintains birth records, which contacted the A.G. after receiving the certificates for filing, and questioned the legality of the certificates bearing the names of two mothers. _Denver Post_, Nov. 17.
Cook County, Illinois, Circuit Judge Thomas P. Durkin ruled Dec. 3 that a heterosexual couple residing in the United Methodist Historic Campground in Des Plaines, Ill., were not entitled to a temporary restraining order barring their eviction from the campgrounds for posting a sign on their cottage supporting gay rights. William and Nannette Graham were reportedly angry that a gay male couple's application to rent a cottage had been denied, and posted a sign of protest on their cottage, after which they were asked to leave and filed their discrimination claim. Durkin ruled that the Campground has a right under the 1st Amendment to evict the Grahams, who are expected to appeal this ruling. _Chicago Tribune_, Dec. 4.
The ACLU Lesbian & Gay Rights Project reported that U.S. District Judge Glen H. Davidson (D. Miss.) has dismissed a lawsuit brought by a man who charged that his constitutional rights were violated when his lesbian ex-wife was allowed to have standard visitation rights with their child by a state chancery court judge. Judge Davidson's brief order dismissing the claim warns that "any future frivolous litigation will result in the imposition of substantial monetary and nonmonetary sanctions." The ex-wife is represented by the Project's staff attorney Leslie Cooper and local counsel C. Jackson Williams. _ACLU Press Release_, Nov. 23.
Lambda Legal Defense Fund reported Nov. 23 that a uninamous panel of the California Court of Appeal in Los Angeles has ruled that exhaustian of administrative remedies was not required under the California Labor Code provisions that covered sexual orientation discrimination prior to the recent addition of sexual orientation as a prohibited ground for discrimination under the Fair Employment and Housing Code. The superior court had dismissed a discrimination claim by Cindy Frazier, a former associate editor of the Palisadian-Post, on the ground that she didn't bring her complaint to the state Labor Department before filing her lawsuit. Unanimously reversing in an unpublished opinion by Justice Margaret Gregnon, _Frazier v. Palisadian-Post_, No. B125252 (Nov. 22), the court found that such a filing was not a prerequisite, and that the lower court had mistakenly relied on precedents interpreting the FEH Code. The decision will be significant, of course, only for incidents of discrimination that occurred prior to the recent amendment of the state law giving the FEH commission jurisdiction of sexual orientation discrimination claims. Frazier is represented by Lambda attorney Jennifer Pizer. _Lambda Press Release_, Nov. 23. A.S.L.
In unanimous votes, the city councils of Los Angeles, California, and Seattle, Washington, have followed the lead of San Francisco in passing ordinances that require the city to refrain from contracting with companies that do not provide domestic partnership benefits for their employees. The San Francisco ordinance has survived initial court tests, but an appeal is pending in the U.S. Court of Appeals for the 9th Circuit, contending that the ordinance is preempted by federal law. The mayors of Los Angeles and Seattle signed their cities' respective ordinances on Nov. 23. _Seattle Post-Intelligencer_, Nov. 23; _Seattle Times_, Nov. 23; _N.Y. Blade News_, Dec. 3.
By a 6-3 vote, the Montgomery County Council approved legislation Nov. 30 to provide domestic partner benefits for same-sex partners of county employees, making the county the third jurisdiction in Maryland, after Baltimore and Takoma Park, to take such a step. County Executive Douglas Duncan told the _Washington Post_ (Dec. 1) that he would sign the bill: "This is an equity issue, and the costs here are minimal enough that it doesn't cause me a great deal of worry. This is something we can do."
On Nov. 29, the Denver City Council approved a registry for committed, unmarried couples, regardless of sex. The unanimous vote will create the second such registry system in Colorado; Boulder established such a system years ago. Registration is open to adults over age 18 who share a household and are not related to each other by blood. The registry itself does not provide any benefits, but the process is expected to be useful for couples seeking benefits from private employers. The city of Denver provides domestic partnership benefits for employees. _Denver Post_, Nov. 30.
Responding to a controversial lawsuit against the University of Pittsburgh seeking domestic partnership benefits for university employees under the city's anti-discrimination law, the Pennsylvania legislature enacted a law exempting universities and colleges in the state from having to provide benefits to unmarried employees. Some Democrats in the legislature cried foul after it appeared that they had unwittingly voted for the measure as an innocuous-sounding amendment to a totally unrelated bill. Gov. Ridge signed the measure on Nov. 24. The local ACLU director in Pittsburgh, who is pursuing the case on behalf of the plaintiff employees, says they will continue to push the case, but the University has asked the court to dismiss it in light of the new state law. _Pittsburgh Post-Gazette_, Nov. 25; _Harrisburg Patriot_, Nov. 26.
Public debate is heating up in California over the Knight Initiative, a ballot measure that will come to a vote in March over whether same-sex marriages should be expressly outlawed in the state. On Nov. 23, Attorney General Bill Lockyer ruled that the official title of Proposition 22 had to be changed, because the "Definition of Marriage" title was misleading to voters. Lockyer ordered that the proposition be renamed as the "Limit on Marriage" Initiative. Polls show that a bare majority of voters now support the initiative. And a group is now petitioning to place a counter-initiative on the ballot in November 2000, which would state: "Two people of the same sex may lawfully marry in California. Such a marriage is subject to meet the same legal requirements as other married persons, and they shall have the same legal rights and obligations as other married persons." _Los Angeles Times_, Nov. 24; _San Diego Union-Tribune_, Nov. 27.
The Massachusetts Senate passed by voice vote on Nov. 16 a measure that would extend health insurance to the domestic partners of state employees, and that would allow municipalities to enact similar laws. Proponents expect that the bill will not be taken up in the other chamber until next year. _Bay Windows_, Nov. 18.
Voters in Spokane, Washington, rejected a ballot measure that would have repealed protection against discrimination based on sexual orientation in the city's human rights ordinance. But voters in Greeley, Colorado, defeated a proposal to enact an ordinance banning discrimination based on sexual orientation, race, sex, age, disability or religion. _Spokesman Review_, Nov. 3; _Omaha World-Herald_, Nov. 4. A.S.L.
Law & Society Notes
Notes from the gay political wars: Two of the largest cities in the U.S. are contemplating the possibility of openly-gay men as mayors. In San Francisco, Tom Ammiano, President of the Board of Supervisors, was a last-minute write-in entrant in the mayoral race, and emerged in second place with enough votes to deny Willie Brown the clear majority he needed to escape a run-off. The Dec. 14 vote will be a one-on-one competition between left-winger Brown and further left-winger Ammiano, putting city Republicans and moderates in a quandary! In Los Angeles, one of many candidates for the Democratic nomination for mayor next year is long-time City Councilman Joel Wachs, who decided after many years of avoiding the subject to "come out" officially. Few knowledgable politicos in the city were surprised, and general media reaction was a big yawn, accompanied by speculation that Wachs would benefit from coming out because it would give him a special advantage in raising money from gay voters in the city and nationwide.
CBS has announced that it will begin offering domestic partnership benefits for same-sex partners of employees on January 1, 2000, according to an announcement from the National Lesbian and Gay Journalists Association. This leaves NBC (owned by General Electric) as the only major U.S. TV network that does not yet offer such benefits.
General Motors is changing its corporate policy to expand to unmarried partners of employees coverage of expenses for attending special business events to which spouses are invited, including dealer trips and conventions. _USA Today_, Nov. 19.
A coalition of educators and mental health professionals and their professional associations announced Nov. 22 that they will circulate a booklet on homosexuality to every school superintendent in the nation, asserting that there is "no support among health and mental health professional organizations" for the idea that homosexuality is abnormal or mentally unhealthy. The report also condemns "reparative therapy," attempts to change human sexual orientation, and urges educators to create healthy, receptive environments for their lesbian and gay students. _NY Times_, Nov. 23.
Despite a letter from several members of Congress asking the Army to cease and desist, it will continue its "investigation" to determine whether openly-gay Arizona State Representative Steve May should be discharged from the Army Reserve for disclosing his sexual orientation during a debate on the floor of the Arizona House of Representatives. The letter, co-authored by Reps. Barney Frank (D.-Mass.) and Tom Campbell (R.-Calif.) questions the constitutionality of taking actions against a state legislator based on statements he makes in a legislative debate. May's comments were made in the course of debating an anti-gay measure introduced by another representative. _Arizona Daily Star_, Nov. 19.
In _American Civil Liberties Union v. Johnson_, 1999 WL 992744 (Nov. 2), the U.S. Court of Appeals for the 10th Circuit upheld a preliminary injunction forestalling implementation of a New Mexico law criminalizing the dissemination by computer of sexually-oriented material. Finding that the district court had correctly applied the Supreme Court's 1st Amendment ruling in _Reno v. ACLU_, 521 U.S. 844 (1997), which had invalidated similar provisions in a federal statute, the unanimous court of appeals ruling, expressed in an opinion by Circuit Judge Anderson, also agreed with the district court's conclusion that the New Mexico law violated the Commerce Clause by attempting to regulate conduct outside the state of New Mexico without producing a sufficient local benefit to justify that burden, and also potentially subjecting internet users to a harmful burden of inconsistent regulation from state to state. A.S.L.
International Notes: United Kingdom
Clause 28 to be dismantled? The notorious provision of U.K. law that forbids the spending of public funds on any instruction in the schools that would treat homosexuality as normal or acceptable is on the hit-list for the Blair government, but the first move is likely to be in Scotland, where First Minister Donald Dewar said Oct. 29 that his government would seek a repeal in the Scottish Parliament. After Dewar's remarks were reported in the press, a spokesperson for the English government confirmed that it also intended to repeal the law, and it was expected that the Welsh Parliament would follow suit. _The Express_, Oct. 30.
Responding to criticism of recent pro-gay rulings in the courts, and most particularly the recent gay family law decision by the House of Lords Law Committee, the Lord Chief Justice of England, Lord Bingham, released the following statement: "It is most important that the law should move to keep in touch with changing social attitudes. Otherwise the men among us would still be asserting our common-law right to beat our wives, we would all be asserting out common-law right to beat our children, husbands would be asserting common-law rights to rape their wives unless they were separated. We would all, without hesitation, I think, accept these changes were desirable and probably overdue." Bingham also praised the judges who had rendered the recent decisions, stating that these were difficult cases and that the judges were paid to decide such cases. _Daily Mail_, Nov. 5.
The Law Commission has recommended a reform of the law on bystander damages, loss of consortium, etc., to recognize the claims of same-sex partners and others not traditionally covered by laws on spousal loss. The Commission said, "A key aim is to bring this area of law into line with values of modern society." _Daily Mail_, Nov. 2.
As Britain prepares to lift the ban on military service by gay people in response to the ruling of the European Court of Human Rights, a new code for sexual conduct in the forces is being readied. Early reports are that it will be a draconian crackdown on sexual conduct, including forbiding touching, displays of affection, and relationships across ranks, regardless of gender or sexual orientation. Some senior officers expressed concern that it would be difficult to maintain a volunteer military force with such rules in place. Said one, anonymously, "To tell a young person that they are to join the Armed Forces where perfectly normal behavior such as falling for a colleague of the opposite sex is wrong, is going to make it even harder to recruit and retain people." Under the new rules, there will be no ban on service by gay people, but Defence officials hope that suppression of all open sexuality will minimize any disruption due to anti-gay feeling among heterosexual service members. _Daily Telegraph_, Nov. 15.
Issuing a general statement in connection with a series of rulings on judicial conflicts of interest and grounds for removal, the three most senior justices of England's Court of Appeal, including Lord Chief Justice Bingham, quoted above, set out guidelines to curb the growing practice of challenging judges for bias. "We cannot conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge," they wrote, going on to specify other areas where normally an objection should not be entertained, including the judge's social, educational or employment background, or that of his or her family members. _Times of London_, Nov. 18.
Angela Mason, the executive director of Stonewall, Britain's gay rights lobbying and political organization, was called to Buckingham Palace with her partner and their 15-year old daughter to receive membership in the Order of the British Empire at the hands of Prince Charles. Mason took advantage of the occasion to thank Prince Charles on behalf of the gay community for his visit to the site of the anti-gay bombing that took place last April at a gay bar in the Soho neighborhood of London, showing the opposition of the Crown to anti-gay violence. Although Mason is not the first openly gay person to be honored by the Crown, she is the first gay political activist to be so honored specifically for her activism. _The Express_, Nov. 13.
Michael Portillo, formerly a legislative leader of the Conservative Party, was swept out of office by the Labour Party's victory, but decided to stand for election in a vacant seat in November. Shortly before the election, he stated publicly that he had homosexual affairs during his younger days, causing a major stir in the press, not least because of his staunchly anti-gay voting record as a member of Parliament. Portillo was shadowed through the rest of his campaign by gay protesters calling him a hypocrite. Portillo won the Kensington and Chelsea by-election on Nov. 25 and will return to Parliament, but is expected to be a back-bencher for now. _Daily Telegraph_, Nov. 26. A.S.L.
International Notes: Ireland
The _Irish Times_ reported Dec. 3 that the nation's Equality Authority has established an advisory committee on equal opportunities for gays and lesbians, with an eye toward recommending changes in government laws and policies to address issues of discrimination and exclusion.
On Nov. 2, the _Irish Times_ reported that the Labour Party has proposed an amendment to the Irish Republic's Constitution, titled "Equality Before the Law," that would state as follows: "No person shall unfairly suffer discrimination, direct or indirect, on any ground such as race, colour, language, nationality, national, social or ethnic origin, membership of the Traveller community, age, gender, disability, sexual orientation, culture, religion, political or other opinion, birth or marital, family or other status." At the same time, the party also proposed an amendment on "socio-economic rights" covering employment, health care, housing, and nutrition. A.S.L.
International Notes: Canada
The recent Supreme Court of Canada decision finding fault with Ontario's law on spousal support because it did not extend to cover same-sex couples spurred a somewhat reluctant provincial legislature to pass Bill 5, a measure that created a new legal category of "same-sex partner" and provided that this category be recognized for a variety of grounds in public policy and benefits where the law recognizes married couples or opposite-sex cohabitants. However, Martha McCarthy, the lawyer whose case, _M v. H_, led to the Supreme Court decision, has expressed dissatisfaction with the Ontario law, which does not provide strict equality of recognition because it fails to address certain legal policies where same-sex partners continue to encounter discrimination, including adoption rights and property tax issues. Also, by adding a new category to the law rather than broadening the legal definition of "spouse" to include same-sex couples, the law preserves a symbolic distinction and may deprive gay litigants of resort to the provinces human rights agency to redress remaining forms of discrimination. McCarthy announced her intention to seek Supreme Court review of the Ontario law. _Globe & Mail_, Nov. 25; _Toronto Star_, Nov. 22.
Mr. Justice Peter Martin of the Court of Queen's Bench in Alberta issued a ruling Nov. 26 providing that same-sex step-parents should have full adoption rights under Alberta's Child Welfare Act. As a result of the ruling, two lesbian couples who had applied to adopt their partners' children will be able to proceed to a determination of best interests of the children in their pending cases. _Globe & Mail_, Nov. 27.
At the next Canadian national census, to be held in 2001, lesbian and gay Canadians will be able to self-identify for the first time. This will come in the form of a specific category on relationships that will include same-sex couples. The census agency, Statistics Canada, has not yet announced the precise wording of the question, which is still under study. The agency's chief of housing, family and social statistics said they decided to go forward on this because "We had a lot of people telling us they wanted information on this," especially in light of recent court decisions requiring recognition of same-sex couples for a variety of purposes. _London Free Press_, Nov. 1.
How different some things look north of the border. . . In Toronto, a gay University of Toronto senior is starting a gay scout troop with the full blessing of the Scouts of Canada board of directors and no particular public outcry. Two gay churches will serve as sponsors, and the Rev. Susan Mabey will serve as the troop leader. Under the co-educational policy of Scouts of Canada, the makeup of the troop will be both boys and girls. < MI>Washington Post_, Nov. 25; _Globe & Mail_, Nov. 3. A.S.L.
International Notes: Australia & New Zealand
For the first time, a transsexual has won election to the New Zealand legislature. Georgina Beyer, part Maori, will be part of a group of 18 Maori legislators, the largest bloc of votes ever amassed by Maoris in this century. Beyer worked as a stripper and male prostitute in Wellington and Sydney before she underwent sex reassignment surgery, and will be part of a new, Labor-led coalition that will take control of the Parliament. _Edmonton Sun_, Nov. 28.
New Zealand's Law Commission has called for a re-examination of the rules on adoption, so as to allow same-sex and de facto couples the same adoption rights as married couples. In a report released at the end of October, the Commission stated: "We offer for consideration the proposal that sexual orientation towards the same gender should not constitute a general disqualification for making an adoption application." _Christchurch Press_, Nov. 1.
The state government in Victoria, Australia, is planning to rewrite the state's equal opportunity laws and to revise more than 30 pieces of existing legislation that discirminate on the basis of sexual orientation. Attorney General Rob Hulls called for granting gay people equal rights in property, inheritance, health and finance, to bring the state into line with legislation passed in New South Wales earlier in 1999. _The Age_, Nov. 22.
A lesbian police officer who used in vitro fertilization to conceive a child has been charged with violation of the Victoria Infertility Treatment Act, which allows such treatments only for married couples or heterosexuals recognized as de facto couples. Sr. Constable Haley Atkinson was charged with conspiring with a gay male officer to claim that they were a de facto couple in order to obtain IVF services from a program in Melbourne in August 1998. _The Age_, Nov. 17.
Labor members of Parliament in the state of Queensland, Australia, have reportedly pushed through a measure to change domestic laws so that same-sex couples will be recognized the same as de facto opposite sex couples. _ABC News Online_, Nov. 12. A.S.L.
Other International Notes
The Constitutional Council of France has given its approval to the Civil Solidarity Pact legislation that was recently passed by the parliament, despite opposition from President Jacques Chirac. The bill was sponsored by Prime Minister Lionel Jospin's Socialist Party. _Reuters_, Nov. 9.
The European Commission is expected to support proposals to ban employment discrimination within the European Union on grounds of race, ethnicity, sexual orientation, religion, disability or age; such a ban would require member nations to adopt appropriate enabling legislation and enforcement systems. _Financial Times_, Nov. 24. A.S.L.
The annual legal conference co-sponsored by the Lesbian & Gay Law Association of Greater New York and local lesbian/gay law student groups will be held on February 26, 2000, at NYU Law School. Save the date.
The N.Y.C. Gay and Lesbian Anti-Violence Project is accepting applications for the position of coordinator of its Community-Police Relations Program. The job specification calls for a lawyer for this position. Details can be obtained from the Lesbian & Gay Law Association of Greater New York's office at the telephone number listed on the first page of this newsletter.
The AIDS Legal Referral Panel of San Francisco is seeking to fill the position of Attorney/Executive Director, which involves coordinating the work of approximately 500 volunteer attorneys. Applications should be mailed no later than Dec. 10, 1999, to: ED Search, ALRP, 582 Market St., #912, San Francisco CA 94104.
The Philadelphia Bar Association passed a resolution on Sept. 30 calling for the inclusion of legal protection for sexual and gender minorities at state and federal levels. The resolution was drafted by EEOC attorney David Rosenblum, and was initiated by the Association's Committee on the Legal Rights of Lesbians and Gay Men. _Philadelphia Gay News_, Oct. 31. A.S.L.
AIDS & RELATED LEGAL NOTES
Florida Appeals Court Reverses Verdict in AIDS Phobia Case
Reversing judgments totalling $58,000 for emotional distress and loss of consortium, the Florida 5th District Court of Appeal found that a reasonable person would not, as a matter of law, suffer severe emotional distress from having sipped a bit of "flat" Coca Cola and then having concluded that a condom dripping semen was floating in the bottom of the bottle. _Coca-Cola Vottling Co. v. Hagan_, 1999 WL 1082472 (Dec. 3).
Barbara Parker owns a day care center in Hastings, where her sister Linda Hagan works as a teacher. Linda went out on her lunch hour to buy some refreshments and returned with a bottle of Coke for Barbara. Barbara opened the bottle and poured some into a cup. She took a sip and decided it was flat. Linda then poured some into another cup, zipped and concurred. Linda took the bottle into the bathroom to hold it up to the light. According to Judge Sharp's opinion for the appeals court, "When she turned the bottle upside down, she could see something floating in the remaining liquid in the bottle. Both women testified it looked like a used condom, with oozy stringy stuff coming out of the top. Hagan testified she became nauseated. Both testified they became frightened for their health." Indeed, two new cases of AIDS phobia were then hatched, supplemented by a loss of consortium claim for Barbara's husband. The two women went to the hospital emergency room the next morning, where they were apparently the object of bemused winks and smiles for their fears, but they did get HIV tests (which were negative), and retested negative six months later.
A benighted trial judge allowed their claims to go to a jury, which awarded each woman $75,000 and $20,000 to Mr. Parker. The judge partially regained his senses and cut down the verdicts to $25,000 each plus $8,000 for the hubby, and both sides appealed.
Judge Sharp pointed out that the Florida Supreme Court has persistently refused to abandon the common law "impact rule," which requires that all claims for emotional distress damages arise from a physical impact that itself causes injury. Despite her brief bout of nausea, Sharp felt that Linda's case did not qualify; neither did Barbara's, and certainly not her husband's. In most jurisdictions, Sharp observed, AIDS phobia claims require the client either to demonstrate actual contact with HIV under circumstances where transmission could theoretically take place, or, failing that, some courts had allowed claims to proceed where a reasonable person could believe he or she had been exposed to HIV through the negligence of another, although such cases are a distinct minority.
Here, it turned out upon laboratory investigation that what appeared to be a condom leaking sperm was merely a mold that had been growing in the bottom of the bottle as a result of a leak in the air-seal that caused the soda to go "flat." However, given the posture of the case, Sharp found that the court should accept on appeal the jury's implicit finding that Linda and Barbara reasonably thought they had each ingested some Coke from a bottle tainted with a used condom. but in light of the Florida's courts' continued embrace of the contact rule, the verdicts had to be reversed.
In a special concurrence, Judge Dauksch argued against the contact rule, but concluded: "given that the state of Florida is still supporting the tired, old impact rule I am duty-bound to adhere to it and urge a change by the Supreme Court of Florida. We have been instructed by that court to leave it to them to make the necessary changes."
In a separate brief statement, Judges Dauksch and Sharp agreed to certify to the Supreme Court of Florida "the following question as being one of great public importance: Should the impact rule be abolished or amended in Florida?" (Or, put another way in the context of this case, if panic-stricken people, mistaking some mold for a leaking condom in the bottom of a Coke bottle, conclude that the Coke they were drinking must be swimming with lethal HIV, can they recover damages from the bottler of the Coke for negligent infliction of emotional distress?) A.S.L.
Mississippi High Court Creates Exception to Actual Exposure Rule in HIV Emotional Distress Case
In _South Central Regional Medical Center v. Pickering_, 1999 WL 1000703 (Nov. 4), the Supreme Court of Mississippi made it easier for plaintiffs to recover for negligent infliction of emotional distress when they have suffered anxiety under the belief that they were exposed the HIV virus. While adhering to the rule that plaintiffs must show actual exposure to the virus in order to make out a claim, Justice Mills, writing for the court, announced that when the defendant prevents the plaintiff from testing the instrument by which the alleged exposure occurred, the plaintiff will benefit from a presumption of actual exposure.
Jimmie Pickering, a diabetic, was a patient at South Central to regulate and receive instruction on how to maintain her blood sugar levels. Pickering used the hospital's Autoclix machine, which contained lancets that a patient can use to prick her finger to draw blood in order to determine her blood sugar levels. On September 30, 1987, Pickering attempted to demonstrate her treatment routine for a nurse in order to receive proper instruction. Pickering used a "kit" that had been handed to her by the nurse, but before she was able to prick her finger, the nurse grabbed Pickering's hand to prevent her from using the lancet. The nurse told Pickering that the group of lancets from which Pickering had chosen was a group of previously used lancets. The nurse immediately disposed of the lancets. When Pickering asked the nurse why she had not disposed of the lancets previously, Pickering claimed that the nurse responded that the disposal protocol had only been implemented two weeks earlier and that she was not yet accustomed to using it. Pickering also claimed that every time she had previously tested her blood she pricked her finger with the used lancets.
Although Pickering's only information regarding the used lancets came from the nurse's reaction and statements, after the September 30 incident, South Central ordered Pickering and eleven other patients attended to by the same nurse to be tested for HIV. Pickering offered no evidence that the lancets she used were contaminated with HIV or any other communicable disease. The court noted, however, that the lancets were disposed of by South Central before any tests could be run on them. After a series of five tests for HIV and other communicable diseases from September 1987 through August 1990, Pickering's results remained negative.
Pickering filed a claim for negligent infliction of emotional distress, alleging that she became "extremely anxious" that she might have contracted HIV from the lancets. She claimed that she "feels like `part of me is lost' because she no longer socializes with her friends, does not actively participate in her granddaughter's life, and does not go grocery
shopping anymore for fear that she will infect those around her." She also claimed that she is subject to ridicule by those in her community who know about the South Central incident.
South Central, relying on _Leaf River Forest Products, Inc. v. Ferguson_, 662 So.2d 648 (Miss. 1995), moved for summary judgment on the basis that Pickering had offered no evidence that she had suffered "actual exposure" to HIV or any other disease. The circuit court denied the motion for summary judgment, but later amended its judgment granting certification for interlocutory appeal to the Mississippi Supreme Court.
Justice Mills began the court's opinion by reviewing _Ferguson_. In that case, the Mississippi Supreme Court held that "if one is to recover for emotional distress predicated on potential future illness, there must be substantial proof of exposure and medical evidence that would indicate possible future illness." Although Ferguson had alleged a fear of cancer, the court found that the "similarities between the fear of contracting AIDS claims and so-called `cancer phobia' claims" justified the decision to apply the rationale of cancer phobia cases to AIDS-phobia cases, and noted that a majority of the jurisdictions that have considered AIDS-phobia cases have done the same, requiring actual exposure to HIV as a prerequisite to recovery.
The Mississippi court also recognized, however, a minority of cases classified as "window of anxiety" cases. In _Madrid v. Lincoln County Medical Center_, 122 N.M. 269 (1996), Sonia Madrid was allowed to recover for the anxiety suffered from an incident where she was splattered with blood products during transport. The New Mexico Supreme Court adopted this rule in the hopes of promoting public health because "the potential for liability encourages those engaged in conduct that may result in an exposure incident to use reasonable care." Justice Mills noted that the _Madrid_ court implied that the recoverable period of anxiety should be limited from the time of exposure to the receipt of conclusive test results demonstrating that she in negative.
Turning back to the facts of _Pickering_, Mills emphasized that Pickering had been precluded from meeting the actual exposure requirement of _Ferguson_ because South Central was responsible for the lancets being thrown away before they could be tested for the presence of HIV and/or other diseases. Therefore, this was not a case for strict application of _Ferguson_. Instead, the court held that in actual exposure cases, the plaintiff, in order to make out a prima facie case, need only establish that (1) the defendant owed a duty to the plaintiff to protect her from exposure to diseases; (2) the defendant breached that duty by negligently allowing or causing a medically recognized instrument or channel of transmission to come into physical contact with the plaintiff; (3) the resulting emotional injury was a foreseeable result of that breach and (4) there was, in fact, an emotional injury. Furthermore, when the defendant caused best evidence (i.e., the instrument) to be destroyed, despite being on notice that a material, factual issue existed regarding the evidence, resulting in the inability of the plaintiff to test it, a rebuttable presumption of actual exposure would arise in favor of the plaintiff. The defendant would then bear the burden of proving that the instrument did not contain or carry a disease causing agent. The questions surrounding the presumption would be issues of fact. Where the defendant did not know or have reason to know that the evidence it discarded was material and disposed of the instrument in the course of normal medical practice, the presumption would not arise.
The court offered its own policy rationales for the new rule. First, the rule encourages health care providers to use reasonable care in handling instruments capable of transmitting disease. Second, it forces them to conduct tests to determine the presence of disease causing agents in the event of a negligently caused accident, as the medical practitioner is "most often the only party in a position to make this determination since it is he or she that possesses control over the instrument." Finally, the immediate determination will "quell any significant and, therefore, recoverable fears and anxieties that would emerge in the victim" as a result of the accident.
The court concluded its opinion by explicitly stating that it was not overruling _Ferguson_. Instead, the court envisioned this rule as merely offering a way for plaintiffs to recover damages brought about by defendant's negligence that "would otherwise not be recoverable because of the defendant's subsequent act of blocking the plaintiff's path to a successful case by destroying or disposing of a key element in the plaintiff's case." Therefore, the court affirmed the decision of the lower court denying summary judgment. In closing, the court reiterated that Pickering's potential recovery is limited to the window of anxiety - the time between the incident whereby Pickering was possibly exposed and the receipt of conclusive HIV negative results. If a plaintiff refuses to obtain adequate and reliable testing for the presence of HIV, the court noted that the rule of _Ferguson_ would again prevail, and no cause of action would exist. However, in this case, where Pickering did obtain reliable testing, it was appropriate to send this case back to the lower court for trial. _Sharon McGowan_
Washington Appeals Court Upholds 10-Year Sentence for HIV+ Man Who Had Unprotected Sex With Woman
Although it found some errors in the trial court's decision-making, the Washington Court of Appeals upheld a ten year sentence for an HIV+ man who had unprotected sex with several women under circumstances where HIV could have been transmitted. _State of Washington v. Ferguson_, 1999 WL 1004992 (Nov. 5) (unpublished opinion).
The specific charge on which Randall Ferguson was tried was second degree assault by exposing a woman, referred to in the opinion by Judge Morgan as CD, to HIV. The court's lengthy recitation of the trial record and other evidence shows that Ferguson, a drug addict, did not hide his HIV status from the rather large number of women with whom he had sex and who testified at his trial, but was very inconsistent in his use of condoms and had said to various witnesses that he really wasn't particularly concerned if some of his sex partners became infected, since they were worthless drug addicts just like him.
In one interview with a law enforcement official that was part of the record, "Ferguson acknowledged a sexual relationship with CD during the summer of 1994. He said they had sexual intercourse once in a park and twice in motel rooms. Although he initially said that they had used a condom each time, he later said `he had removed his condom,' which `had become sloppy and loose,' to exchange it for a new one. He also admitted, but then immediately denied, ejaculating inside of CD. To explain his admission, he went on to say `that he had re-entered her vagina with his penis without a condom on,' but only because `he needed to have that skin-to-skin contact in order to get his erection back.' At the end of the interview, `just as we were basically standing up and ready to leave, ... he stood and shouted, `Hey, I remember the condom broke,' and he made the statement to us, `You ask her that. The condom broke.'" In his testimony at trial, Ferguson insisted that all of his sex was consensual, that he usually but not always disclosed his HIV status to his partners, and that he used condoms and "carried a sack of them" with him. The testimony at trial by Ferguson and various of his sex partners tended to show that most of the sex occurred while the parties were high on drugs.
Ferguson raised a variety of claims on appeal of his sentence, both going to the conviction and to the length of the sentence. Ferguson claimed that the statute under which he was prosecuted violates equal protection by singling out people with HIV for differential treatment from others. The court rejected this charge, pointing out that the statute in question, which criminalizes knowingly exposing another to HIV, does not treat HIV+ people differently from anybody else. An uninfected person could be found to violate the statute by injecting somebody with HIV-infected blood, for example. The court found that it was rational for the legislature, in light of the particular harms associated with HIV, to pass a statute imposing liability in the case of exposing somebody to the virus.
The court rejected Ferguson's claim that the testimony of all his sexual partners other than CD should not have been admitted on grounds of prejudice, finding that this testimony was highly relevant on the issue of Ferguson's intent. "If a man who knows he has HIV has sex once or twice without a condom, he may be acting forgetfully or in the heat of passion (i.e., without an intent to inflict harm). If a man who knows he has HIV repeatedly has sex with many women, without advising them of his HIV status and without using a condom, it may be inferred from the facts alone, without regard to propensity, that he is acting with intent to inflict harm." The court also rejected Ferguson's objection to evidence from other witnesses that went to the issue of his state of mind regarding his HIV status and the risks he was posing to others by his conduct. The court also rejected Ferguson's objection to the lower court's decision to preserve the anonymity of all his sex partners who had testified, finding that there was a strong justification for protecting their privacy.
Most important, however, is the court's discussion of Ferguson's contention that he had a right to advance a consent defense. "We disagree, without determining whether consent can sometimes be a defense to an assault with the AIDS virus. CD said she did not know he took the condom off; until afterward, she thought he was using it while he was inside her. Ferguson said he never took the condom off. neither inference supports a defense that CD consented to sex without a condom, or to being assaulted with HIV, even though she clearly consented to sex with a condom." In two footnotes, the court suggests that it is possible that the statute does not recognize a consent defense, even where the evidence would support the conclusion that an individual knowingly consented to having unsafe sex with an HIV+ person.
Finally, Ferguson argued that the court erred by imposing an exceptional sentence that exceeds the normal guidelines. The trial court had decided that a longer sentence was mandated for a variety of reasons, including the particular vulnerability of the victim in this case and the deliberate cruelty of Ferguson, as well as Ferguson's demonstrated history of exposing many women to the risk of HIV transmission. The court concluded that the sentencing court was entitled to consider the incidents involving the other women based on their testimony at trial, and that the finding of deliberate cruelty was supported by the record. However, the court of appeals found that the trial court erred in finding that CD was particularly vulnerable, even though she was on drugs at the time of the sexual incidents that were discussed in the record. But the court concluded that remanding for resentencing was unnecessary, since it seemed unlikely that upon reconsideration the trial court would decide to impose a lesser sentence. A.S.L.
Mississippi Appeals Court Upholds 5-Year Sentence For Violating HIV Quarantine Order
The Court of Appeals of Mississippi upheld the jury conviction and 5 year prison sentence of Phillip Carter for violating a quarantine order by having sex with another man without notifying him of his HIV+ status. _Carter v. State_, 1999 WL 1034827 (Nov. 16).
On January 9, 1992, William Fryery, a Mississippi State Department of Health official, met with Carter after receiving notice from the Lowndes County Health Department that Carter tested positive for HIV. The Mississippi State Department of Health then issued a quarantine order against Carter decreeing that he "posed a risk of harm to the public health." Carter was required to notify his sexual partners he was HIV+ and was ordered not to engage in "any activity whereby his blood would be commingled with others' blood." The quarantine order was served on March 31, 1992.
Raymond Bell, one of Carter's former sexual partners, testified against him. Bell called the Health Department after learning of Carter's HIV status, and reported that he had sex with Carter. The decision does not indicate Bell's HIV status. Fryery testified that he counseled Carter "about his disease" and informed people Carter listed as sexual partners of his HIV status. The court found that Bell's testimony led to the conclusion that Carter violated the quarantine order several months after he "was absolutely bound" to follow it.
Carter argued that he thought "if he failed to follow the instructions given him at his counseling session with Fryery, including not engaging in sexual conduct without informing his partner of his HIV status, he could possibly be put under quarantine orders." Carter further argued that he did not "knowingly and willfully violate the order because he did not realize he was actually bound to follow the order." Judge Payne, writing for the court, found that Fryery's testimony of serving the quarantine order, along with that of Max Blanton, a Lowndes County Deputy Sheriff that he accompanied Fryery, was sufficient to uphold the jury's verdict. _Daniel R Schaffer_
AIDS Service Agency Victorious in Dispute Over Funding With NYC
In _Housing Works, Inc. v. City of New York_, 1999 WL 1034752 (S.D.N.Y. Nov. 12), District Judge Schwartz ordered the City to revise its rankings that made Housing Works ineligible for federal grants to provide services with people with AIDS. In this decision, the judge adopted the position of Housing Works that the city had retaliated against Housing Works for its aggressive AIDS advocacy over the years and its harsh criticism of the Giuliani administration's policies relating to people with AIDS. The court rejected the grounds stated by the city for its determinations as being pretextual. Because the city's determinations had precluded Housing Works from receiving these contracts, the court's order had the net effect of compelling the award of these grants to Housing Works.
This was a very closely watched case which received substantial publicity when issued. The court's categorical rejection of the city's position in its lengthy decision with its detailed findings of fact would be a humiliating defeat for the Giuliani Administration if the principal players of Giuliani administration were subject to any sense of shame.
The court found that Housing Works has two components: a service component which City evaluators have acknowledged over the years as being capable of rendering first-class care to its clients, and a very vocal public action component which has proved equally adept at mobilizing supporters to mount very visible and high profile public protests in support of Housing Works' objectives. It is quite clear that Housing Works has not hesitated to make use of its public action
component when it was felt that such action was called for over the years dating back to 1991; it is equally clear that the principals in the Giuliani Administration, a frequent target of such actions, have taken great umbrage at these public actions, according to Judge Schwartz.
Housing Works has also made frequent use of the courts to vindicate its rights. Pending state court actions formed the basis for the city's motion for the federal court to abstain in favor of determination by the state court in proceedings which the federal court determined were not quite parallel.
This case involved a competitive process for grants from the U.S. Department of Housing and Urban Development to subsidize housing for the homeless. Housing Works made proposals for two projects which it administers. Award of these grants was administered by the city. Rankings of 30th and 33rd in the applicant pool were initially made by the city. These would be sufficient for Housing Works to receive these grants, but these rankings were revised downward thereafter, allegedly because of past irregularities in bookkeeping and administration. Housing Works sued, alleging that it lost out because of its history of aggressive advocacy on behalf of people with AIDS and its vocal criticism of the Giuliani Administration.
Schwartz found that the concerns raised by the city were not unusual among social service agencies of the nature of Housing Works, where funding is slim and the stated goals are quite ambitious. The court also found that, even though these concerns had been resolved, the City continued to penalize Housing Works for it past failings, something the City did not do to agencies competing with Housing Works for funding. While the City allowed others to amend deficiencies in their initial applications in response to specific concerns raised by the City, Housing Works was given no such opportunity. Indeed, the court found that the city official who scored the Housing Works application and "marked down" the application for these "irregularities" wasn't quite sure what the irregularities were, only that they were to be taken seriously, notwithstanding the fact that this official had found the housing projects run by Housing Works to be of excellent quality, meeting or exceeding HUD standards. It is quite clear from the record that the City sought out reasons to downgrade Housing Works' application, but that the true reasons for the city's determinations related to Housing Works' history of aggressive activism.
The court directed the City to re-rank Housing Works' application for the HUD grants "and to do so without downgrading Housing Works' ranking because of defendants' disapproval of Housing Works' criticism of the Giuliani Administration or it advocacy on behalf of persons with HIV or AIDS." Based on the record, the court directed the initial rankings of 30th and 33rd be restored, and that the city and HUD are to effectuate the new ranking promptly upon receipt of the court's order. _Steven Kolodny_
Federal Court Countermands Denial of SSDI Benefits for Woman With HIV
In a decision exposing shocking ineptness within the Social Security Administration's system for passing on benefits claims, U.S. District Judge Ponsor ruled in _Chelte v. Apfel_, 1999 WL 1067652 (D. Mass., Nov. 24), that Karen Chelte was eligible for social security disability benefits due to the complications stemming from her HIV infection and other medical conditions. The court found that "the Commissioner's decision that plaintiff's HIV impairment did not meet the listing requirements is not supported by substantial evidence," and ordered that Chelte be paid benefits for the period covered by her application. The opinion includes a detailed recitation of the evidence presented and the incredibly incompetent way in which it was evaluated up and down the line in the benefits appeals process. Indeed, reading this opinion, one might conclude that the officials involved were acting under some sort of directive to deny benefits payments regardless of the applicant's eligibility; perhaps, to be more charitable, one might conclude that the persons involved were guilty of gross neglect of duty or simple incompetence in interpreting their own guidelines and regulations. Either way, the opinion makes for shocking reading. A.S.L.
Federal Court Upholds Policy Requiring Prospective Adoptive Parents to Disclose HIV Status of Those Residing in the Household
A federal district court in Pennsylvania denied a motion for a preliminary injunction to halt enforcement of a policy issued by the Centre County Office of Children and Youth Services (CYS) requiring prospective foster parents to disclose whether any child living in the home has AIDS or any other serious infectious disease. _John and Mary Doe v. County of Centre_, 60 F. Supp. 2d 417 (M.D. PA, Aug. 30, 1999). The plaintiffs, who had applied to be foster parents with CYS, refused to comply with the policy, alleging violation of their rights under the Americans with Disability Act (ADA) and Section 504 of the Rehabilitation Act.
The Does have two adopted sons at home, one of whom, AJB, was diagnosed with HIV at birth. He is now 10 years old. While he had some serious HIV-related health problems before he began new drug therapy in 1996, he now suffers no greater risk of opportunistic infections than another child who does not have HIV. As part of the approval process, CYS conducted a study of the Does' home and took note of AJB. The application process was halted when CYS adopted a new policy and wished to disclose to the biological parents of the prospective foster child that AJB has AIDS. Although CYS was willing to place HIV+ foster children in the Does' home without such disclosure, that did not satisfy the Does. In promulgating the policy, CYS relied on the federal Adoption and Safe Families Act, 42 U.S.C. 671, which has as its underlying policy the promotion of child health and safety as the paramount concern of a foster care program.
District Judge McClure first looked at whether the Does had a reasonable probability of success on the merits. The ADA provides that "No individual shall be discriminated against on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation," and Section 504 of the Rehab. Act provides that "No otherwise qualified individual with a disability… shall, solely by reason of his or her disability, be excluded from the participation in …or be subjected to discrimination under any program … receiving federal financial assistance." The court assumed for purposes of ruling on the motion that the Does were otherwise qualified to be foster parents; but, having no disability, were they entitled to protection under the ADA and the Rehab. Act?
While it has been established that a person with HIV is entitled to such protection, AJB was not the party seeking protection. Judge McClure cited 28 C.F.R. 35.130(g): "A public entity shall not exclude or otherwise deny equal services, programs or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association." As the parents of AJB, the Does had a close association with a person with a disability. Therefore, Judge McClure found that the parents were entitled to ADA and Rehab. Act protection, unless the situation fell under an exception.
The ADA excludes from its purview individuals who "pose a direct threat to the health or safety of others … a significant risk …that cannot be eliminated by a modification of policies, practices or procedures…" (42 U.S.C. Sec. 12182(b)(3)). The Rehab. Act has a similar exclusion at 29 U.S.C. Sec. 705(20)(D). In determining what is a significant risk to the health or safety of others, courts look at findings of facts, based on reasonable medical judgments about (a) how the disease is transmitted, (b) how long the carrier is infectious, (c) the severity of the risk and (d) the probability that the disease will be transmitted and cause harm, an analysis set out by the Supreme Court in _School Board of Nassau County v. Arline_, 480 U.S. 273 (1987).
McClure, looking at the facts with respect to the Does' situation, went through each of the above-mentioned factors. McClure found that HIV is transmitted through exchange of bodily fluids, and an infected individual is a potential transmitter of the HIV until death. The harm to others is life threatening, although HIV cannot be transmitted through casual contact, but mainly through sexual contact and the sharing of hypodermic needles. On the fourth criterion, although the court noted that AJB's family has not contracted HIV from him, nor has anyone in his school, nevertheless there is a high probability that foster children living with AJB will contract HIV from him. The court based this on a statistic showing that 36% of the foster children placed by CYS have sexual issues, such as having been the victims or perpetrators of sexual abuse. (The reader should take note that only 45 children were involved in making up this statistic - 24% were victims of sexual abuse, 7% were both victims and perpetrators, and only 5% were solely perpetrators). The court also relied on testimony that foster children are often aggressive and are sexually active or prone to sexually assaulting others, and that CYS cannot identify which children will engage in those behaviors. Further, AJB is not able to fend off sexual advances or assaults because of his mental and physical deficiencies. Therefore, the court found, foster children who fit those descriptions were at risk of getting HIV from AJB; in other words, AJB was a direct threat to them and fell within the exception to the ADA and the Rehab. Act.
As a result, the Does failed to show a reasonable probability of success on the merits, a requirement for obtaining preliminary injunctive relief. Moreover, Judge McClure wrote, the foregoing shows that relief would result in even greater harm to the other party or a third party and that granting the relief would not be in the public interest. "The court finds that the policy is not a form of unlawful discrimination. Rather, the policy serves the public interest by protecting sexually deviate children from a contagious, life-threatening disease."
The court also ruled that the plaintiffs had not met the rest of the standard for granting a preliminary injunction, i.e., irreparabe injury if relief is denied. The plaintiffs had been previously approved as foster parents by another foster care agency. Furthermore, Judge McClure wrote, CYS had not yet rejected the Does' application; it was still pending (although clearly it will be rejected if the policy is allowed to be enforced and the Does fail to comply with it). And, McClure noted, since placement is never guaranteed, even if the application is approved, the Does cannot show any harm. A claim by the Does that they had been embarrassed and humiliated was dispensed with as well. It seemed obvious to the court that since the Does have a website specifying each of the family member's first names and AJB's HIV status, they could not possibly be that concerned with privacy issues. For this reason, and for all the reasons stated above, the court ruled that the plaintiffs had not sustained the burden of showing that they have met the standard for the granting of preliminary injunctive relief. _Elaine Chapnik_
Australian State Court Holds Doctor Liable Where Patient's Sex Partner Acquired HIV-Infection
In a lengthy, highly analytical opinion, the New South Wales (Australia) Supreme Court has found that a doctor negligently caused the HIV infection of a deceased patient's wife by failing to counsel the patient to take an HIV test. _B.T. v. Oei_, 1999 NSWSC 1082, Nov. 5, 1999.
The deceased, AT, had consulted with Dr. Oei regarding his hepatitis condition. The court, in an opinion by Justice Bell, found that at the time a competent doctor would, on the basis of the symptoms presented, have recommended HIV testing and would have strongly counselled AT to undergo it, and that the likelihood was overwhelming that a properly counselled patient in AT's circumstances would have taken the test.. The court also found the record supported the conclusion that had AT been tested at that time, he would have tested positive. Although AT was not married or dating BT at that time, he subsequently met BT. There was evidence that BT accompanied AT to subsequent appointments with Dr. Oei, who became aware of their relationship, although this does not appear to have played a major role in the court's decision. The court also concluded, based on testimony about the nature of AT and BT's relationship, that had AT known he was HIV+, he would have taken steps to avoid infecting BT. The court also found that the most likely source of BT's subsequently developed HIV-infection was sexual contact with AT (who has sinced died of non-AIDS-related medical complications). Under these circumstances, the court found that Dr. Oei's breach of duty toward his patient AT was the proximate cause of BT contracting HIV. The ultimate damage award sustained by the court exceed $700,000 (Australian). However, the court rejected a claim for damages on behalf of AT's estate for the emotional distress AT suffered when he eventually did learn that he was HIV+ and that he had infected BT. The court found that AT's reaction amounted to no more than the normal grief and depression that a person would feel in the circumstances and did not amount to the severe emotional distress required for a tort recovery. A.S.L.
AIDS Litigation Notes
In a decision reported in the _New York Times_ on Nov. 17 but not yet reported in the _New York Law Journal_ or Westlaw, N.Y. Supreme Court Justice Emily Jane Goodman ruled that the city of New York was violating a 1997 city ordinance that required it to provide medically appropriate housing for people with AIDS who could not afford their own housing. According to the _Times_ article, the ruling, rendered late on Nov. 15, was given in a lawsuit brought by Armen H. Merjian, a lawyer for Housing Works, an AIDS services organization, which showed that more than 2,000 people with AIDS were living in emergency housing provided through the Division of AIDS Services and Income Support, but that many others had applied for housing assistance and were on waiting lists. Goodman construed the law to require speedy provision of housing, and ordered the city to do so. A spokesperson for the City Law Department said the opinion would be appealed, because the city did not interpret the law to place any sort of time limit on its response to applications for AIDS-related housing.
In _State of Wisconsin v. Myers_, 1999 WL 733821 (Sept. 21) (not officially published), the Wisconsin court of appeals ruled that a convict's later discovery that he was HIV+ was not a factor that justified reopening the issue of his prison sentence. Anthony Myers entered no contest pleas to charges to forgery. He appealed his sentence on various grounds, one of them being that the court refused to reduce his sentence upon the discovery that he was HIV+. The court found that in order to warrant a sentence reduction, new information must be "highly relevant" to the imposition of sentence. "Assuming that a diagnosis of HIV translates into a reduced life expectancy, a fact not established in the record, Myers' health and life expectancy were not substantial factors in setting the original sentence and the purposes of the original sentence are not frustrated by changes in his health." The brief per curiam opinion does not specify the sentence imposed on Myers.
The _New York Times_ reported Nov. 18 that the Adirondack Council of the Girl Scouts and the Girl Scouts of America had settled a claim pending before the N.Y. State Division of Human Rights that the respondents had denied a public accommodation to a 9 year old girl with HIV by excluding her from participating in several girl scout troops to which she had applied. The Legal Action Center of New York City represented Quashawn Donovan, a resident of rural Queensbury, N.Y. Under the settlement, the Council will revise its procedures and set up educational programs to ensure that HIV-infected girls who are capable of participating are not improperly excluded from girl scout programs.
Lambda Legal Defense Fund has announced a settlement of its discrimination complaint before the Chicago, Illinois, Commission on Human Relations against Aegis Properties, a landlord that refused to deal with the Howard Brown Health Center, a gay/AIDS health organization that sought to rent space in one of Aegis's buildings for an HIV outreach program in a minority community. Aegis denies that it discriminated, and maintained that it offered to rent space but Howard Brown Center failed to follow up. These denials ring hollow, since Aegis has agreed to a monetary settlement. (Howard Brown eventually rented space elsewhere.) _Lambda Press Release_, Nov. 16. A.S.L.
AIDS Law & Society Note
N.Y.C. Mayor Rudolph Giuliani's decision to "get tough" with benefits recipients clearly extends to people with HIV/AIDS, as noted above. Another instance is the new command that all benefits recipients considered "able-bodied" must work or will lose their benefits. On Nov. 4, Mark Hoover, deputy commissioner of the Human Resources Administration, revealed that the city was setting up a new office to assist HIV benefits recipients in finding appropriate work to justify their receipt of benefits. Advocates for PWAs criticized the program, observing the difficulty in many cases of people dealing with HIV infection and AIDS being able to meet the time schedules in typical workplaces. _Newsday_, Nov. 5. A.S.L.
AIDS International Law & Policy Notes
The Supreme Court of India will again decide whether an HIV+ individual has a right to marry. The question occurs due to a prior decision of the court that somebody with a communicable venereal disease must submit to treatment and their right to marry is "suspended" until the person is cured. Sections 269 and 270 of the Indian Penal Code, according to the prior judgment, "imposed a duty on an HIV positive person not to marry as the marriage would have an effect of spreading the infection of his own disease, which is obviously dangerous to life of the woman he marries, apart from being an offence." Petitioner's counsel in the new case argue that the prior decision violates a basic human and fundamental right. _The Times of India_, Nov. 20.
Government officials in South Africa have caused a commotion by speaking out against the use of AZT by pregnant women. The drug has been found to sharply reduce the risk of HIV transmission from the mother to the child in the womb and upon delivery, but President Thabo Mbeki and Health Minister Manto Tshabalala-Msimang have both expressed concerns that AZT is a seriously toxic drug that may threaten the health of the mother. AIDS experts have been arguing that the overwhelming benefit of using AZT with pregnant women outweighs the risks of harm. _New York Times_, Nov. 23.
The Immigration Ministry in New Zealand has decided to implement compulsory HIV testing for anybody seeking to enter New Zealand for a stay of more than two years. At present, long-term visitors are required to undergo syphilis and tuberculosis testing. A government spokesman said the new policy brought New Zealand in line with Australia, where all applicants for entry over 15 have to take a mandatory HIV test. _Christchurch Press_, Nov. 10. A.S.L.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Bahls, Jane Easter, _Don't Ask, Don't Tell, Don't Recruit_, 28 Student Lawyer No. 3, 18 (Nov. 1999) (account of Solomon Amendment and law schools, somewhat outdated by events - see above).
Cossman, Brenda, and Bruce Ryder, M v. H_: Time to Clean Up Your Acts_, 10 Constitutional Forum No. 3 (Centre for Constitutional Studies, Edmonton, Alberta, Canada) (commenting on the need to revise Canadian statutes in light of the Supreme Court's requirement for recognition of same-sex couples).
Fletcher, George P., _In God's Image: The Religious Imperative of Equality Under Law_, 99 Columbia L. Rev. 1608 (Oct. 1999).
Kirby, Michael, _Domestic Implementation of International Human Rights Norms_, 5 Australian J. Hum. Rts. 109 (1999).
Lewis, Robert P., _Courts Struggle With Sexual Harassment Against Homosexuals_, N.Y.L.J., 11/29/1999, p.1. (Outside Counsel column).
McMahon, Colleen, _Due Process: Constitutional Rights and the Stigma of Sexual Abuse Allegations in Child Custody Proceedings_, 39 Catholic Lawyer 153 (1999).
O'Neil, Robert M., _Religious Freedom and Nondiscrimination: State RFRA Laws Versus Civil Rights_, 32 U.C. Davis L. Rev. 785 (Spring 1999).
Sanders, Joel, _The Regulation of Indecent Material Accessible to Children on the Internet_, 39 Catholic Lawyer 125 (1999).
Vlaardingerbroek, Paul, _Changing Family Forms and the Law of Succession_, 7 Tilburg Foreign L. Rev. 347 (1999).
_Student Notes & Comments:_
Cunnane, Kristine M., _Maintaining Viewpoint Neutrality for the NEA:_ National Endowment for the Arts v. Finley, 31 Conn. L. Rev. 1445 (Summer 1999).
DeCoste, Frederick C., _The Separation of State Powers in Liberal Polity:_ Vriend v. Alberta, 44 McGill L. J. 231 (April 1999).
Kilpatrick, Gregory R., The National Coalition for Gay and Lesbian Equality v. The Minister of Justice_: A New Era in South African Sexual Orientation Protection_, 24 N.C. J. Int'l L. & Comm. Reg. 699 (Spring 1999).
Macklem, Timothy, Vriend v. Alberta_: Making the Private Public_, 44 McGill L. J. 197 (April 1999).
Note, _Decency v. The Arts: And the Winner Is . . . The National Endowment for the Arts?_, 29 Seton Hall L. Rev. 1513 (1999).
Human Rights L.J., vol. 19, pp. 338-351 (31 Dec. 1998), contains a report on _Sheffield and Horsham v. U.K._, the decision of the European Court of Human Rights in Strasbourg, holding that the state has no positive obligation to alter birth certificates of post-operative transsexuals. * * * The Common Market L. Rev., vol. 36, no. 5 (Oct. 1999), contains a case report on _Grant v. South West Trains Ltd_, the European Court of Justice case rejecting a suit for domestic partnership benefits against a British employer. * * * Prof. Paris Baldacci of Cardozo Law School's Bet Tzedek Legal Services has compiled a booklet summarizing and analyzing the tenant succession caselaw in New York State. Copies are available for a nominal copying fee by application to Prof. Baldacci at 212-790-0240.
AIDS & RELATED LEGAL ISSUES:
Ainslie, Donald C., _Questioning Bioethics: AIDS, Sexual Ethics, and the Duty to Warn_, 29 Hastings Ctr. Rep. No. 5, 26 (Sept-Oct 1999).
Broadhead, Robert S., Yael van Hulst, et al., _The Impact of a Needle Exchange's Closure_, 114 Pub. Health Rep. 439 (Sep-Oct 1999).
Grinstead, Olga A., Barry Zack, Bonnie Faigeles, Nina Grossman and Leroy Blea, _Reducing Postrelease HIV Risk Among Male Prison Inmates: A Peer-Led Intervention_, 26 Crim. Just. & Behav. 453 (Dec. 1999).
Merjian, Armen H., _Bad Decisions Make Bad Decisions:_ Davis, Arline, _and Improper Application of the Undue Financial Burden Defense Under the Rehabilitation Act and the Americans with Disabilities Act_, 65 Brooklyn L. Rev. 105 (1999).
_Student Notes & Comments:_
Bhatnager, Sonia, _HIV Name Reporting and Partner Notification in New York State_, 26 Fordham Urb. L. J. 1457 (May 1999).
Embry, Rebecca Walker, _The Supreme Court Opens Its Mind, and Medical Books, and Refuses `You Can Walk, You Can Talk, You Don't Seem Sick Enough' Approach to Asymptomatic HIV Coverage Under the Americans With Disabilities Act_, 17 St. L. U. Pub. L. Rev. 183 (1997).
Parks, James C., Jr., _Civil Rights: An Examination of Non-Symptomatic HIV Infection Under the Americans With Disabilities Act of 1990_; Bragdon v. Abbott, _118 S.Ct. 2196 (1998)_, 75 N. Dak. L. Rev. 609 (1999).
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.