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    The Lawletter Blog

    John M. Stone

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    CONSTITUTIONAL LAW: Requiring Major Political Party Affiliation for State Court Judges Runs Afoul of First Amendment Right of Association

    Posted by John M. Stone on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    John Stone—Senior Attorney, National Legal Research Group

                In Delaware, a judicial nominating commission, with members balanced between the two major political parties, provides recommended candidates to the Governor for the appointment of judges to the state courts. When a position becomes open, the commission gives public notice of the position, including the major party membership required for nomination to a particular judgeship. The party membership requirement has its origins in article IV, § 3 of the Delaware Constitution, which effectively excludes all candidates for state judge positions who are not members of either the Republican or the Democratic Party.

                A Delaware resident and member of the Delaware Bar considered applying to become a state judge, but in the end, he did not apply because as an independent politically, his application would have been futile in light of the constitutional provision. Nonetheless, first a United States district court and then a federal appellate court found that he had standing to challenge the limitation on judicial candidates to the two major political parties for the Delaware Supreme Court, the Superior Court, and the Chancery Court on the ground that such exclusion of persons not members of those parties was an unjustified infringement on the plaintiff's First Amendment freedom of associationAdams v. Governor of Del., No. 18-1045, 2019 WL 1549857 (3d Cir. Apr. 10, 2019).

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    Topics: Delaware, constitutional law, John M Stone, appointment of judgeship, party membership requirement

    EMPLOYMENT: Disability Discrimination in Employment—Health-Care Employer

    Posted by John M. Stone on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    John Stone—Senior Attorney, National Legal Research Group

     

                The Americans with Disabilities Act ("ADA") prohibits covered employers from discriminating against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). This prohibition against discrimination can apply to certain medical examinations and inquiries.

     

                However, the ADA does not forbid all medical examinations and inquiries. Their permissibility and scope varies depending on the stage of employment. Employers are generally prohibited from making any disability-related inquiries or requiring medical examinations of applicants before offering employment.

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    Topics: employment discrimination, ADA, John M Stone, health-care employer, screening and vaccination

    CONSTITUTIONAL LAW: Convicted Domestic Abuser's Gun Rights Go Up in Smoke

    Posted by John M. Stone on Tue, Oct 2, 2018 @ 10:10 AM

    The Lawletter Vol 43 No 5

    John Stone—Senior Attorney, National Legal Research Group

                The Gun Control Act of 1968 bars firearm possession by certain groups of individuals, including convicted felons and those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution.” 18 U.S.C. § 922(g)(1), (4). In 1996, Congress added a domestic violence misdemeanant restriction.  Id. § 922(g)(9). Recognizing  that  “[e]xisting felon-in-possession  laws . . . were not keeping firearms out of the hands of domestic abusers, because many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies,” Congress extended the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence to “close this dangerous loophole.” United States v. Hayes, 555 U.S. 415, 426 (2009) (internal quotation marks, citation, and bracket omitted).

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    Topics: constitutional law, second amendment, Gun Control Act, firearm prohibition, misdemeanor crime of domestic violence

    LOCAL AND STATE GOVERNMENT: State Is Immune from Liability for Sexual Abuse by Adopted Child

    Posted by John M. Stone on Thu, Feb 22, 2018 @ 12:02 PM

    The Lawletter Vol 43 No 1

    John Stone, Senior Attorney, National Legal Research Group

                The parents of a child sexually abused by a child they adopted brought an action against the state of Nebraska for negligent failure to warn or disclose, and failure to supervise.  A state employee incorrectly stated to the parents before the adoption that the adopted child had no sexual abuse history. After a bench trial, the trial court entered judgment for the State based on the defense of sovereign immunity. When the parents appealed, the Supreme Court of Nebraska affirmed the lower court ruling.  Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). 

                Like statutes in many other states, Nebraska's Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 et seq., includes a waiver of the state's sovereign immunity from tort liability, but it also retains such immunity for some broad categories of conduct. Statutes authorizing a lawsuit against the State are strictly construed, since they are in derogation of the State's sovereignty. Under the intentional torts exception, sovereign immunity is not waived for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Neb. Rev. Stat. § 81-8,219(4).

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    Topics: adopted child, local government, intentional tort, negligence, sovereign immunity

    PERSONAL INJURY: Suicide as Intervening Event

    Posted by John M. Stone on Wed, Sep 20, 2017 @ 11:09 AM

    The Lawletter Vol 42 No 7

    John Stone, Senior Attorney, National Legal Research Group

                According to the "intervening causes doctrine," there can be no proximate cause, as is required for liability in a negligence case, where there has intervened between the act of the defendant and the injury to the plaintiff an independent act or omission of someone other than the defendant, that was not foreseeable by the defendant, was not triggered by the defendant's act, and was sufficient of itself to cause the injury. As a general rule, suicide is deemed an unforeseeable intervening cause of death that absolves the tortfeasor of negligence liability in an action for wrongful death.

                When a mother brought an action against a city and its police officer for wrongful death arising out of her teenage daughter's suicide death, after the officer's disclosure of photographs of the daughter's body following her previous suicide attempt, the claim failed because of the intervening cause doctrine.  City of Richmond Hill v. Maia, No. S16G1337, 2017 WL 2332660 (Ga. May 30, 2017).

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    Topics: suicide, personal injury, intervening event

    CONSTITUTIONAL LAW:  Maryland "Assault Weapon" Ban Upheld by Fourth Circuit

    Posted by John M. Stone on Thu, May 4, 2017 @ 10:05 AM

    The Lawletter Vol 42 No 3

    John Stone, Senior Attorney, National Legal Research Group

                Largely in response to mass shootings in places such as Newtown, Connecticut, Aurora, Colorado, Fort Hood, Texas, and Virginia Tech, in 2013, the General Assembly of Maryland enacted the Firearm Safety Act ("FSA"), which bans military-style rifles and shotguns (referred to as "assault weapons") and detachable large-capacity magazines. Affirming in relevant part a decision by the United States District Court for the District of Maryland, Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014), the Fourth Circuit Court of Appeals has upheld the FSA against a constitutional challenge based on the Second Amendment right to bear arms.  Kolbe v. Hogan, 849 F.3d 114, 2017 WL 679687 (4th Cir. Feb. 21, 2017).

                The appellate court concluded that the assault weapons and large-capacity magazines that were banned by Maryland's FSA were not protected by the Second Amendment; they were most useful in military service, in that they were designed to kill or disable the enemy on a battlefield, and they had a capability for lethality far beyond that of other firearms. This "most useful in military service" concept describes a distinction drawn by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 627 (2008) ("It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [concerning militias]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.").

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    Topics: constitutional law, Fourth Circuit affirmed, assault weapon ban, Maryland Firearm Safety Act

    EMPLOYMENT DISCRIMINATION: Causation in an Equal Pay Act Retaliation Case

    Posted by John M. Stone on Tue, Jan 3, 2017 @ 15:01 PM

    The Lawletter Vol 41 No 11

    John Stone, Senior Attorney, National Legal Research Group

         As with most forms of employment discrimination, an employer's retaliation against an employee for asserting discrimination under the Equal Pay Act ("EPA") gives rise to an additional and distinct cause of action for the employee. To state a claim for retaliation under the EPA (as incorporated into the Fair Labor Standards Act), a plaintiff must plausibly allege (1) engagement in protected activity, (2) materially adverse action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination, and (3) causality.

         A showing of the causality element requires either (1) that the retaliation closely followed the protected activity, or (2) that the plaintiff put forth a sufficient explanation for the delay between the protected activity and the alleged retaliation. Where the time between the protected conduct and the alleged retaliation is too great to establish causation based solely on temporal proximity, a plaintiff must present other relevant evidence to establish causation, such as continuing retaliatory conduct and animus in the intervening period. In addition, when there may be valid reasons why an adverse employment action was not taken immediately, the absence of immediacy between the cause and the effect does not disprove causation in a retaliation case.

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    Topics: employment discrimination, Equal Pay Act, protected activity, temporal proximity in time

    PUBLIC EMPLOYMENT: "A Law" Does Not Include an Agency Regulation

    Posted by John M. Stone on Tue, Jul 26, 2016 @ 12:07 PM

    The Lawletter Vol 41 No 7

    John Stone, Senior Attorney, National Legal Research Group

          It is commonly understood that substantive agency regulations that are promulgated pursuant to statutory authority typically have the "force and effect of law." See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015). That does not mean, however, that for all purposes and in all contexts, a law is the same as a statute, and vice versa. The point is illustrated by a recent decision by the Court of Appeals for the Federal Circuit, where the presence of a one-letter word, "a," was a part of the court's reasoning. Rainey v. Merit Sys. Prot. Bd., No. 2015-3234, 2016 WL 3165617 (Fed. Cir. June 7, 2016).

         A Foreign Affairs Officer in the Department of State was relieved of his duties as a contracting officer representative. The officer filed a complaint with the Office of Special Counsel, alleging that his duties had been taken away because he had refused his supervisor's order to tell a contractor to rehire a terminated subcontractor. He argued that his refusal was based on his view that carrying out the order would have required him to violate a federal regulation, by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.

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    Topics: public employment, John M Stone, The Lawletter Vol 41 No 7, Department of Homeland Security v. MacLean, agency regulations, right-to-disobey provision

    CIVIL RIGHTS: Help America Vote Act Creates Individual Right Enforceable Through § 1983

    Posted by John M. Stone on Fri, Mar 11, 2016 @ 11:03 AM

    The Lawletter Vol 41, No 3

    John Stone, Senior Attorney, National Legal Research Group

         A federal civil rights statute, 42 U.S.C. § 1983, is most closely associated with providing a remedy for individuals whose federal constitutional rights have been violated by persons acting under color of state law. However, although they comprise a relatively small subset of § 1983 cases, claims under § 1983 can, under certain circumstances, be based upon violations of federal rights derived from federal statutes, not from the U.S. Constitution.

         In a recent example of such a claim, a voter in Puerto Rico brought an action challenging a Puerto Rico statute that struck her and more than 300,000 other voters from a voter-registration roll because they did not vote in the prior general election. The U.S. District Court for the District of Puerto Rico issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission ("SEC") from removing otherwise eligible voters from an active election registry unless the requirements of the federal Help America Vote Act ("HAVA") were met. Colón-Marrero v. Conty-Perez, No. CIV. 12-1749CCC, 2015 WL 3508142 (D.P.R. signed June 4, 2015). The President of the SEC appealed, and the First Circuit Court of Appeals affirmed the lower court. Colón-Marrero v. Velez, No. 15-1356, 2016 WL 386428 (1st Cir. Feb. 1, 2016).

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    Topics: civil rights, § 1983, John M Stone, Help America Vote Act, Colon-Marrero v. Conty-Perez, removal from active election registry barred

    CONSTITUTIONAL LAW: Involuntary Commitment Scheme Violates Due Process

    Posted by John M. Stone on Tue, Dec 1, 2015 @ 17:12 PM

    The Lawletter Vol 40 No 11

    John Stone—Senior Attorney, National Legal Research Group

         A state must release a person who is involuntarily committed if the grounds for his commitment no longer exist. See O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975); cf. Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."). If the requirement to release the committed when they deserve to be let out is to have any meaning, a state must also periodically review whether the grounds for commitment are still met. Otherwise, a state could circumvent the timely release requirement by simply refusing to ever consider the continued propriety of commitment. To effectuate that requirement, then, the state must undertake some form of periodic review. See Parham v. J.R., 442 U.S. 584, 607 (1979).

         Periodic review of continuing involuntary commitments need not consist of an adversarial proceeding involving a judge or even an administrator. Nonetheless, the person charged with periodically reviewing continuing involuntary commitments must be required to consider the propriety of ongoing commitment. That person must also be authorized to order a release if the criteria for commitment are no longer met. See id. ("It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission.").

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    Topics: constitutional law, John M Stone, involuntary commitment

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