The Lawletter Vol 34 No 10, November 4, 2010

Steve Friedman, Senior Attorney, National Legal Research Group

Various open meeting and sunshine laws are intended to make governmental meetings and records accessible to the public.

The purpose of such acts is to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based and to give the public the fullest and most complete information regarding affairs of government as is compatible with the conduct of governmental business.

73 C.J.S. Public Admininstrative Law and Procedure § 32 (Westlaw database updated May 2010) (footnotes omitted).

In this regard, and similar to other state statutes around the country, the Virginia Freedom of Information Act ("VFOIA"), Va. Code Ann. §§ 2.2‑3700 to ‑3714, provides for public access to all public records held by the Commonwealth, its officers, and its employees.  See Va. Code Ann. § 2.2‑3700.  Notably, however, the VFOIA restricts access to a certain segment of the public:  "citizens of the Commonwealth [of Virginia]."  Id. § 2.2‑3704(A).

The Lawletter Vol 34 No 10, November 4, 2010

John Stone, Senior Attorney, National Legal Research Group

When it enacted the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), "Congress endeavored to codify existing Free Exercise jurisprudence" in the area of land use regulations.  Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 350 (2d Cir. 2005) (citations omitted).  The RLUIPA has not elevated federal courts into appellate zoning boards, id. at 348-49, but it protects against "subtle forms of discrimination when, as in the case of the grant or denial of zoning variances, a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards," Sts. Constantine & Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005) (Posner, J.) (citations omitted).

Section 2(a)(1) of the RLUIPA, the substantial-burden claims provision, provides that

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly or institution—

(A)      is in furtherance of a compelling interest; and

(B)      is the least restrictive means of furthering that compelling interest.

42 U.S.C. § 2000cc(a)(1).  In  Fortress Bible Church v. Feiner, No. 03 Civ. 4235(SCR), 2010 WL 3199876 (S.D.N.Y. Aug. 12, 2010), a Town's determined efforts to keep a church from establishing itself in a new location in the town after the church congregation had outgrown the property where it had been for 40 years led a court to find a violation of the RLUIPACand a not so "subtle" violation at that.

In addition to injunctive relief, the court in Fortress Bible Church ruled that the church could recover damages, not by means of the RLUIPA, but under a separate claim under 42 U.S.C. § 1983.  Courts are divided on the issue of whether the "appropriate relief" available under the RLUIPA extends to monetary damages.  Compare Madison v. Virginia, 474 F.3d 118, 131B32 (4th Cir. 2006) (monetary damages are not available under the RLUIPA), with Smith v. Allen, 502 F.3d 1255, 1265 (11th Cir. 2007) (monetary damages are available under the RLUIPA).  The Second Circuit has yet to resolve the issue.  The same Town conduct that violated rights under the RLUIPA offended the First Amendment Free Exercise Clause and the Fourteenth Amendment Equal Protection Clause, thus supporting the § 1983 claim.

The evidence presented at a 26-day bench trial established that the proposed use of the church's new property, including the operation of a school, would be devoted to religious purposes.  A single structure would house both the church and school and would include a sanctuary, offices, library, kitchen, classrooms, and a gymnasium.  The proposed facility would host prayer, religious ceremonies, fellowships, visiting ministries, religious education, and other religious activities.  The minister for the church testified regarding the religious significance of these activities to the church and its congregants.  Also, a preexisting single‑family house on the same property would be used as the parsonage for the church.

The Lawletter Vol 34 No 10, November 4, 2010

The Court of Appeals of Michigan recently held, in the case of Mickel v. Wilson, No. 289037, 2010 WL 3418897 (Mich. Ct. App. Aug. 31, 2010) (unpublished per curiam opinion), that a father could not be held liable for the negligent supervision of his daughter, who died while in the father's care.  In Mickel, the plaintiff mother and defendant father had divorced, and the father had custody every other weekend of the couple's three daughters, aged nine, seven, and three and a half.  On the day of the incident, the father had taken the girls to a relative's graduation party, which was being held at a home situated on an inland lake.  The father knew that the youngest girl could not swim.

The Lawletter Vol 34 No 11, November 19, 2010

Matt McDavitt, Senior Attorney, National Legal Research Group

The federal estate tax officially expired on January 1, 2010, a repeal that was signed into law a decade ago as part of the Economic Growth and Tax Relief Reconciliation Act of 2001.  I.R.C. § 2210(a).  According to the Act's sunset provision, the federal estate tax will revert to pre-Act levels after December 31, 2010, absent action by Congress, but in the meantime, the absence of a federal estate tax is causing problems in administering the estates of persons dying during 2010 where bypass trusts are to be created, the funding of which is expressly tied to a federal estate tax exemption, exclusion, or the like.  Depending upon the wording of the bypass trust funding clause, the impact of the federal estate tax repeal would result in either the bypass trust's not being funded at all or the entire corpus flowing into the bypass trust.  Neither circumstance is ideal, as such results leave another class of primary trust beneficiaries (such as cestuis of marital trusts) without means of support from the trust, thereby defeating settlor intent.  Undeniably, it is a black-letter principle of trusts law in every jurisdiction that, in administering a trust, courts are bound to ascertain and effectuate the intent of the settlor as plainly discernible by reference to the text of the trust instrument.

The Lawletter Vol 34 No 12, December 7, 2010

Steve Friedman, Senior Attorney National Legal Research Group,

Title VII prohibits employers from taking adverse employment action simply because an employee's "appearance . . . does not conform to stereotypical gender roles."  Doe v. Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998).  The Supreme Court has long held that sex stereotyping can violate Title VII when it influences employment decisions.  See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  The critical issue in these cases is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not.  Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998).

Although Title VII provides an exception for "bona fide occupational qualification[s] reasonably necessary to the normal operation of that particular business or enterprise," 42 U.S.C. § 2000e‑2(e)(1), that exception does not typically include one's attractiveness.  Thus, whereas physical attractiveness may well be a bona fide occupational qualification for cheerleaders and fashion models, see Lewis v. Heartland Inns of Am., 591 F.3d 1033, 1043 (8th Cir. 2010) (Loken, C.J., dissenting) (suggesting same), it is clear that "female sex appeal" is not a bona fide occupational qualification for flight attendants and ticket agents, see id. at 1036 n.1 (citing Wilson v. Sw. Airlines, 517 F. Supp. 292 (N.D. Tex. 1981)).

The Lawletter Vol 34 No 10, November 4, 2010

Paul Ferrer, Senior Attorney, National Legal Research Group

In a recent issue of The Lawletter, see Paul Ferrer, Class Arbitration Requires Specific Agreement, Lawletter Vol. 34, No. 6, at 24, it was noted that the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, is based on the fundamental precept that arbitration is a matter of consent, not coercion.  See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1773 (2010).  As such, parties are "generally free to structure their arbitration agreements as they see fit," and courts and arbitrators are bound to "give effect to the contractual rights and expectations of the parties," as expressed in their agreement. Id. at 1774 (internal quotation marks omitted).  In short, "the FAA lets parties tailor some, even many features of an arbitration by contract, including the way arbitrators are chosen, what their qualifications should be, which issues are arbitrable, along with procedure and choice of substantive law."  Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 586 (2008).  As a result, arbitration provisions should be tailored to meet the particular needs of the parties rather than simply cut-and-pasted verbatim from a form book.