Constitutional Law: January 2008 Archives

  A Yiddish Proverb claims "Borrowed brains have no value." Maybe. But not when it comes to litigation.  

          When 30 year old Mark Albrecht drowned after an epileptic seizure, the state ordered an autopsy by the local coroner. After the procedure, the body was returned to the family for burial. What was not returned was Albrecht’s brain which had been removed by the coroner and later cremated and discarded as medical waste.

            The family filed a class action lawsuit against all of Ohio’s coroners. At issue is whether the next of kin have a protected right in the organs of their loved ones or at least the right to be notified after the organs are removed with the opportunity to claim them when the state no longer needs them. The federal court certified the issue to the Ohio Supreme Court which just heard oral argument in the matter. The briefs can be accessed on line as can the oral argument.

            Both sides claim an adverse result will lead to an avalanche of further trouble. The coroners claim a plaintiff’s win here would greatly restrict the right of the state to conduct autopsies, an argument with little merit. The plaintiffs, on the other hand, claim scientists would view a decision favorable to the defense as an invitation to harvest organs obtained in autopsy for use in medical research.

            The bottom line is that it would seem to ask little of the coroners if they had to give notice to the interested families of the autopsy procedures and the right to obtain the removed body parts after the autopsy is completed.

Alan Milstein

The New Jersey legislature amended the state's Law Against Discrimination ("LAD") effective January 13, 2008. The amendment requires employers to reasonably accommodate the sincerely held religious beliefs  of its employees and applicants, including allowing time off to observe the Sabbath or other holy days, unless to do so would impose an undue burden. 

      The amendment provides that an employer may not "impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance" unless "after engaging in a bona fide effort the employer demonstrates that it is unable to reasonably accommodate the religious observance or practice without undue hardship on the conduct of the employer's business."

       The amendment does not define "bona fide effort" to reach a reasonable accommodation. As to "undue hardship, the amendment defines it "as an "accommodation requiring (1) unreasonable expense or difficulty, (2) unreasonable interference with the safe or efficient operation of the workplace, (3) a violation of a bona fide seniority system or (4) a violation of any provision of a bona fide collective bargaining agreement. The amendment further provides "an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed," and (2) no accommodation is required "where the uniform application of terms and conditions of attendance to employees is essential to prevent undue hardship to the employer."  

    As to the effect on pay and benefits of granting a religious accommodation, the amendment provides an employee is not entitled to any "premium wages"or "premium benefits" that would otherwise be applicable to the hours worked by the employee as an accommodation.  So if an employee works the night shift or a Sunday or holiday that is not his or own as an accommodation, the employee is not entitled to any pay differential that might otherwise be applicable.

Over at SCOTUS are links to the many amicus briefs filed in support of the District of Columbia in the upcoming Second Amendment case before the United States Supreme Court. The list of amicus is impressive, all arguing that the Amendment never was intended to guarantee an individual’s rights to gun ownership. The Bush Administration filed a brief arguing the contrary position.

Everybody loves a good story about hypocritical politicians but the Chuck Rosenthal scandal may be the best one yet. Rosenthal is the District Attorney of Harris County, Texas, the county with the highest number of executions of any county in the land. His office even sought the death penalty for Andrea Yates, the clearly emotionally troubled woman who drowned her five children. Rosenthal, a self-proclaimed evangelical conservative, believes capital punishment is part of God’s plan.

            Apparently, Rosenthal has some plans of his own. Some 860 of his emails recently surfaced in a civil rights suit against his office. Rosenthal had argued the emails were protected by his constitutional right to privacy established in cases like the one he lost in the United States Supreme Court in which he argued that Texas should be allowed to outlaw homosexual practices.

            In one email, the married Rosenthal tells his legal assistant who he now claims was only a former paramour: “The very next time I see you I want to kiss you behind your right ear.” In others, Rosenthal forwards rather lame racist and sexist jokes and videos. Now the state’s attorney has opened up an investigation into whether Rosenthal also illegally used his office email for campaign activities. As far as we know, such indiscretions do not yet carry the death penalty in Texas.

Alan Milstein

It might normally be hard to root for someone like Jose Padilla. He is a former Chicago gang member who converted to Islam and allegedly attended terrorist training camps in Central Asia, then was arrested coming through Chicago’s O’Hare Airport with $10,000 in cash and a list of suspected Al Queda agents. Last year, he was convicted in Florida on charges he was part of an overseas terrorist network. But when his opponent is John Yoo, it’s an easy call as to who has done greater harm to the interests of Justice in the United States.

            Padilla’s attorneys filed suit in federal court in California against the former deputy assistant Attorney General who drafted the so called “Torture Memos” for his bosses in the Bush Administration. Included in the memos are such gems as: "There is a category of behavior not covered by the legal system ...If you were an illegal combatant, you didn’t deserve the protection of the laws of war... They were tried in a military court, and executed"; and Congress has no power to "tie the President’s hands in regard to torture as an interrogation technique."

            Now, incredibly, the former clerk to Justice Clarence Thomas, teaches law at UC Berkely. The suit was filed by Jonathan Freiman of Yale Law School, Yoo’s alma mater. Freiman issued a statement, saying: “John Yoo was central to the justification and creation of the torture system. Without his legal green light, it never could have happened. The Torture Memos are a cynical how-to guide for government officials eager to break the law. . .What Yoo seems to have forgotten is that lawyers are not above the law.”

Here is a copy of the lawsuit.

Alan Milstein