Tuesday, May 6, 2008

Roundup of this week's legal developments

-- The Kansas Supreme Court today set limits on grand jury subpoenas in an investigation of a Kansas abortion provider, but refused to block the subpoenas altogether or strike down the law under which the grand jury convened. The Associated Press reports:

The Supreme Court declined to quash or modify the subpoenas or strike down the law. But it sent the case back to district court and set guidelines for the presiding judge to use to determine whether the subpoenas should be enforced.
“The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass,” Justice Lee Johnson wrote in the high court’s opinion. “If so, the court should quash the subpoenas.”
The Supreme Court said if the district court determines that both of those conditions are satisfied, it must consider patients’ privacy. It must allow Tiller’s clinic to remove all patient identifying information from the copies it provides to the grand jury, the high court said.
“The district court must consider the competing interests of the state and the patients,” Johnson wrote for the Supreme Court.

Notably, the court said that for all records subpoenaed, an independent attorney and physician must ensure the redaction of all information not relevant to the investigation, regardless of whether the information is considered "patient-identifying" information. Bottom line, though: the case is remanded, the abuse of the state justice system to harass health care providers continues.

-- Workplace Law Profs Blog notes an interesting case in which a University of Toledo employee, charged with overseeing the school's equal employment policies, wrote an editorial in a local paper -- which argued vigorously that gay and lesbian people shouldn't be protected from discrimination. Normally, public employees' off-the-job political speech is protected, but there's a very interesting question here of whether a statement like this so undermines the employer, and the particular employee's job responsibilities, as to cross the line into unprotected speech.

-- A Pennsylvania state appellate court held (pdf; see also report here) - over one judge's dissent - that a city could shut down a restaurant that provided an area for patrons to have sex, because sex is not an "accessory use" permitted by its restaurant permit. The dissenting judge compared patron sexual activity to karaoke, cabaret, and off-track betting: not typical for restaurants, but consistent with the types of entertainment that some restaurants are known to provide. This may seem like a weird case, but this kind of business model sounds like a winner for businesses catering to the swing community.

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