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Arizona Law Takes a Toll on Nonresident Students
Breaking Legal News | 2008/01/26 12:25

When Marco Carrillo, a naturalized American and a high school valedictorian, went to meet with his college counselor, her major worry about his future had little to do with his SAT scores or essay or extracurricular activities.

It had to do with his citizenship.

"The very first question she asked me was whether I was a legal resident here," said Mr. Carrillo, 20, now an electrical engineering student at Arizona State University in Tempe. "And I said, ‘Yeah, I am.' And she said, ‘Oh good, that makes things easier.' "

Such questions have become commonplace in Arizona, where voters passed a 2006 referendum, Proposition 300, that forbids college students who cannot prove they are legal residents from receiving state financial assistance.

One of several recent immigration statutes passed by Arizona voters and legislators frustrated by federal inaction, the law also prohibits in-state tuition for illegal immigrants. Administrators at several campuses fear that the provision has priced some out of their classes, particularly at the state's popular community colleges.

"When we look at the fall semester that just ended, we saw significant drops in enrollment in English acquisition classes," said Steven R. Helfgot, vice chancellor for student and community affairs at Maricopa Community Colleges. "And we think that some of that at least is due to Prop 300."

A report to the Legislature in December found that about 1,700 students had been denied in-state tuition at the Maricopa colleges because they were not able to prove their legal status, though it was unclear how many had dropped out.

Officials at the University of Arizona in Tucson said that some of the 200 to 300 dropouts from last fall were also illegal immigrants. Pima Community College, estimated that as many as 1,000 students may have been affected by the law.

More than enrollment declines, however, what worries some educators here is that nonlegal residents — some of whom have lived in the United States since infancy and attended American high schools — will be afraid to pursue any form of higher education.

"The most frightening thing about the policy in place isn't necessarily its measurable effect, it's the immeasurable effect," said Paul R. Kohn, the vice provost for enrollment management and dean of admission at the University of Arizona.

"It's likely that there are hundreds of high school senior or college-age students whose plans for college have been compromised," Dr. Kohn said. "And it's likely there are thousands in K-12 who will no longer make those plans because the cost of university is now out of reach or they fear deportation if they attempt to attend school."

The law does not forbid nonlegal residents from attending college or require colleges to report them to the authorities, something the colleges have worked hard to convey. Still, supporters said the law would save the state millions of dollars and provide a powerful disincentive to prospective border-jumpers.

"Arizona has been overwhelmed with illegal immigration and all the negative things that follow — crime, increased public service costs, especially education, and depression of our wages — and the federal government seems barely capable of doing much," said State Representative John Kavanagh, a Republican from Fountain Hills, east of Phoenix. "Denying the in-state tuition, besides being fair to residents, also deters illegal immigrants from coming here."

Arizona lawmakers have been increasingly active on the issue of immigration, moving National Guard troops to the border and passing a law that threatens businesses with the loss of licenses if they hire illegal immigrants.

The moves have disappointed many college-age Mexican-Americans.

"I see it as a very cruel law," said Teresa Guerra, 26, a fourth-generation Mexican-American who is studying history at Phoenix College, a part of the Maricopa system. "A lot of people I've grown up with have gone through that whole thing. They're raised in the American educational system, and now they have no future. These are people who have basically lived in America their whole lives, know nothing else, and now their shot at the American dream is gone."

For students who cannot prove legal residency, the difference in cost can be stark. At Phoenix College, for example, a part of the Maricopa system, in-state tuition runs $65 a credit hour. For out-of-state students taking a full course load, the cost is $280.

The difference can be even more jarring at the state's four-year institutions. Maria Elena Coronado, a student counselor at Arizona State, said out-of-state students could expect to pay $4,000 to $5,000 more a semester than those who proved legal residency.

"I had a girl come in yesterday, who doesn't have papers, but did really well and carried good grades into college," Ms. Coronado said. "But now she could only afford to take one class."

Representative Kavanagh said the law's intent was not to rob young, assimilated Mexicans of the opportunity to go to college, but merely to try to tame a problem Washington had not solved.

"I would be more than happy to take care of those kids who came here at a young age — they are as American as my kids and would be totally lost if they were deported," he said, challenging Democrats in Arizona to draft a bill that "doesn't have amnesty attached to it."

Mr. Carrillo, the Arizona State student, said he knew of several nonlegal residents considering returning to Mexico for college.

"It's expensive going to school in Mexico over there because there's no such thing as financial aid," he said. "You pretty much have to scrape it. But at least you're not worried that you're going to get deported."



Plaintiff ID'd in Lawsuit Against USADA
Breaking Legal News | 2008/01/26 11:28
The plaintiff in a lawsuit against the U.S. Anti-Doping Agency is Rock Racing cyclist Kayle Leogrande, two people familiar with the case told The Associated Press.

In the lawsuit, filed Wednesday on behalf of "John Doe" in Los Angeles County Superior Court, the cyclist claims USADA broke its own rules and damaged him by outing him as a doping suspect. His identity was sealed in the suit to prevent his name circulating more widely.

Two people with direct knowledge of the case told the AP on Friday that Leogrande was the unnamed cyclist, and that sworn affidavits about Leogrande had been provided to USADA, which was using them in building a case against the 30-year-old.

The cyclist claims USADA planned to test his backup urine sample even though the original 'A' sample test came back negative, and the lawsuit seeks an injunction to prevent USADA from ever testing the 'B' sample.

USADA general counsel Bill Bock would not confirm the name, citing agency rules that forbid him from discussing specific cases.

A message left by AP on Leogrande's cell phone was returned from that cell phone. The angry caller said: "Lose my phone number. Don't call me again. ... I don't know how you got my phone number, but lose it," then hung up.

Plaintiff attorney Maurice Suh did not immediately return messages left at his office by AP.

The samples in question were taken during the International Cycling Classic last July, the two people familiar with the case said. Leogrande won three events, finished second at three more and finished second overall at the event, also known as Superweek.

Leogrande is a member of the Rock Racing team, which is owned by Michael Ball, the CEO of jeans-maker Rock & Republic. His bio on the team Web site said using the "same signature aggressive approach, he now plans to change the face of the racing world."

He most notably has hired Tyler Hamilton, who served a two-year suspension for doping, and had been in conversations with Floyd Landis, who is fighting doping charges of his own, to work in some management capacity for the team.

But Landis, who's serving a two-year suspension while his appeal is pending at the Court of Arbitration for Sport, is prohibited from working for a cycling team.

Landis said Ball was "someone who is going to speak his mind and not always be politically correct about it."

"But he's not out there to break the rules," Landis said. "He sees it the same way I do. If a guy is going to ride, he wants them to follow the rules."

Landis said he didn't know Leogrande and wasn't familiar with the case. The plaintiff's attorneys in this case, Suh and Howard Jacobs, are the same team that represent Landis.

On Thursday, when asked about the lawsuit, Bock called it "utterly frivolous and morally bankrupt."

The lawsuit calls for a jury trial and seeks to recoup damages the plaintiff claims were incurred when the anti-doping agency revealed the case to race organizers and the UCLA testing lab.

The suit alleges USADA notified the plaintiff last Nov. 15 that the 'A' sample came back negative. Despite that negative finding, the agency directed the UCLA testing lab to test the 'B' sample, "thereby violating the applicable rules and regulations governing anti-doping control and testing."



Calif. Court: Medical Pot Not OK at Work
Breaking Legal News | 2008/01/25 08:43
Employers can fire workers who use medical marijuana even if it was legally recommended by a doctor, the California Supreme Court ruled Thursday, dealing the state another setback in its standoff with federal law enforcement. The high court upheld a small Sacramento telecommunications company's firing of a man who flunked a company-ordered drug test. Gary Ross held a medical marijuana card authorizing him to use the drug to treat a back injury sustained while serving in the Air Force.

The company, Ragingwire Inc., argued that it rightfully fired Ross because all marijuana use is illegal under federal law, which does not recognize the medical marijuana laws in California and 11 other states.

The justices upheld that argument in a 5-2 decision.

"No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law," Justice Kathryn Werdegar wrote for the majority.

The U.S. Supreme Court declared in 2005 that state medicinal marijuana laws don't protect users from prosecution. The Drug Enforcement Administration and other federal agencies have been actively shutting down major medical marijuana dispensaries throughout California over the last two years and charging their operators with felony distribution charges.

Ragingwire said it fired Ross because it feared it could be the target of a federal raid, among other reasons.

The Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc. had joined Ragingwire's case, arguing that companies could lose federal contracts and grants if they allowed employees to smoke pot.

The conservative nonprofit Pacific Legal Foundation said in a friend-of-the-court filing that employers could also be liable for damage done by high workers.

Ross had argued that medical marijuana users should receive the same workplace protection from discipline that employees with valid painkiller prescriptions do. California voters legalized medicinal marijuana in 1996.

The nonprofit marijuana advocacy group Americans for Safe Access, which represents Ross, estimates that 300,000 Americans use medical marijuana. The Oakland-based group said it has received hundreds of employee discrimination complaints in California since it began tracking the issue in 2005.

Safe Access attorney Joe Elford said the group will now focus on urging the Legislature to pass a law protecting workers who use medical marijuana.

"We remain confident that there will be a day when medical marijuana patients are not discriminated against in the workplace," he said.

Assemblyman Mark Leno, a Democrat who represents part of San Francisco, said he will introduce legislation addressing those concerns in the next few weeks.

The ruling "strikes a serious blow to patients' rights," he said.

Eleven states have adopted medical-marijuana laws similar to California's: Alaska, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

The American Medical Association advocates keeping marijuana classified as a tightly controlled and dangerous drug that should not be legalized until more research is done.



Court ruling clouds naming of Major League players
Breaking Legal News | 2008/01/25 08:42

A federal appeals court has for the second time generally sided with Justice Department efforts to use the names and urine samples of about 100 Major League baseball players who tested positive for steroids four years ago.

But the convoluted 119-page ruling likely means federal investigators will still be unable use the controversial test results for the foreseeable future because the issue is expected to be tied up in the courts for some time.

The 9th U.S. Circuit Court of Appeal's conclusions could ultimately expose yet more names of players who tested positive for steroids in the league's 2003 anonymous testing program, beyond the recently released Mitchell report on steroids in baseball. Federal investigators seized the drug testing records of dozens of players in 2004 in connection with the Balco steroids scandal.

The showdown over the drug tests could have an impact on the perjury case against former Giants star Barry Bonds if the government obtained evidence of steroid use, although the slugger's lawyers have always insisted it has no bearing on him. The perjury indictment against Bonds already alleges that he failed a separate steroids test in 2000.

Meanwhile, the 9th Circuit - as it did in a 2006 ruling - mostly rejected the arguments of the players' union, which has insisted the seizure of the drug-testing records trampled on the medical privacy rights of the athletes and violated federal protections against unreasonable search and seizure. The appeals court in 2006 had overturned rulings in San Francisco, Los Angeles and Nevada in which the federal judges there found the government searches illegal. This recent decision upheld the majority of that previous ruling.

But it did hand the government one setback by concluding that prosecutors botched their appeal of the Los Angeles judge's ruling by filing it too late. As a result, the government may encounter a stumbling block to using some of the seized information out of the Los Angeles case, although the 9th Circuit's ruling appears to give investigators access to virtually all of the testing information they sought.

The 9th Circuit invited both sides to ask the appeals court to rehear the case with an 11-judge panel, which could delay the case.

Elliot Peters, the lawyer for the players' union, said they would need to review the ruling before deciding whether to press another appeal. Assistant U.S. Attorney Matthew Parrella declined comment.

Federal investigators connected to the Balco case seized computer files in 2004 that contained results from the 2003 testing program, which was designed to evaluate the scope of steroid use in the sport. The players' union and baseball owners had agreed to keep the results of the testing confidential.

The government originally sought the results for 10 players linked to Balco, including Bonds, New York Yankees slugger Jason Giambi and Detroit Tigers outfielder Gary Sheffield. But when investigators seized the records of dozens of other players, it triggered a legal battle pitting government powers to search computer databases with sensitive medical information against the privacy rights of the players.

9th Circuit Judge Sidney Thomas, who dissented in both the 2006 and Thursday's rulings, warned that allowing the searches would have "profound consequences for the constitutional right against illegal search and seizure."



Ohio Court Debates Rights to Body Parts
Breaking Legal News | 2008/01/24 09:37
Justices appeared skeptical of both sides in a state Supreme Court hearing on whether the brain, heart and other body parts removed during an autopsy should be returned to the relatives of the deceased instead of being destroyed.

The case heard Wednesday pits coroners against parents of a 30-year-old man who discovered years after his death that they had buried him without his brain.

During oral arguments Wednesday, Justice Paul Pfeifer at one point called "totally lame" an argument by coroners' attorneys that coroners would be less likely to do thorough autopsies if property rights were involved.

At another moment, another justice, Evelyn Lundberg Stratton, asked an attorney for the family to cite the Constitution to bolster his legal argument, asking where guarantees of liberty or property fit into the case.

Christopher Albrecht died in December 2001 when he suddenly plunged his vehicle into a pond. The coroner determined that an epileptic seizure prompted his accident, but that his death was caused by drowning.

Albrecht's parents learned years later that they had buried him without a brain. They filed a lawsuit against coroners and commissioners in 87 of Ohio's 88 counties.

The case has drawn attention because of its possible impact on coroners, crime investigators, emergency medical technicians, funeral directors and followers of religions that espouse the importance of burying the whole body.

Coroners' attorneys say guaranteeing families the right to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize criminal evidence.

"Plaintiffs would have you believe that you can do an autopsy and still return all of the body," Mark Landes, a lawyer representing the coroners, told the judges. "That's a definitional impossibility."

Brains are particularly difficult to reunite with a body in time for burial, because it takes three to 14 days to prepare them for examination.

In a brief, the Medical Examiners Association said material from a dead body is almost always lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.

Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated after use.

Justice Maureen O'Connor suggested to attorneys for the family that allowing their legal argument to prevail would have a sweeping impact on the entire medical profession.

Attorneys for the family have been taken to task by the court for making a legal question too emotional. Some briefs have contained references to Achilles' slaying of Hector in "The Iliad," the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."

Lawyers for the coroners at one point tried and failed to get one particularly verbose submission — which traced the history of death from ancient to modern times — stricken from the record.



Ohio Court Debates Rights to Body Parts
Breaking Legal News | 2008/01/23 08:22
During an autopsy, the Hamilton County coroner removed Christopher Albrecht's brain and never put it back — a common practice for coroners.

But when Albrecht's parents learned years later that they had buried him without a brain, they filed a lawsuit that raises ethical, moral and religious questions about the treatment of one's body after death.

The case, to be argued Wednesday before the Ohio Supreme Court, has drawn international attention for its ramifications to coroners, crime investigators, EMTs, funeral directors and followers of religions that espouse the importance of burying the whole body.

The Albrechts argue that they had a right under the Ohio Constitution to their son's brain, and a right under the U.S. Constitution to reclaim the brain before it was destroyed. The lawsuit is a class action suit against coroners and commissioners in 87 of Ohio's 88 counties covering cases dating to 1991.

Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated after use.

"What this case really comes down to is, for the convenience of the government, are we Ohioans, we humans, supposed to give up our most basic rights to the human remains of our loved ones?" said John Metz, an attorney who brought the Albrechts' suit. "I am absolutely amazed to have to be standing in front of the highest court in our state to defend against such a socialist view."

Defenders of the coroners, including the Ohio State Coroners Association, Ohio State Medical Association and the National Association of Medical Examiners, contend that establishing property rights for families to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize timely autopsies and jeopardize criminal evidence.

"The longer you wait to perform an autopsy, the more evidence and information you lose," said Elizabeth Mason, an assistant Clermont County prosecutor leading the county coroners' defense.

Brains are particularly difficult to reunite with a body in time for burial, because it takes three to 14 days to prepare them for examination.

Mason anticipates an onslaught of litigation against counties if the Albrechts prevail. Relatives are often upset about autopsies taking place, and may begin negotiating with coroners about what to do with body parts. But relatives may not always agree with each other.

"I call that the 'Chicken-Little-Sky-Is-Falling' defense," Metz said. "We recognize you, as the state, have a right to our loved one's body to do an autopsy. But once you're done, all you have to do is pick up the phone and talk to these people, and say, 'I'm done with your child's heart.'"

Metz and co-counsel Patrick Perotti have been taken to task before the court for making a legal question too emotional. Perotti's briefs have contained references to Achilles' slaying of Hector in The Iliad, the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."

Lawyers for the coroners at one point tried and failed to get one particularly verbose submission — which traced the history of death from ancient to modern times — stricken from the record.

"We don't dispute that it is a cultural norm for us to accord that kind of respect for our dead," Mason said. "But that doesn't mean that when they went out to get Hector's body back, they scraped up every drop of blood to make sure they got everything."

In a brief, the Medical Examiners Association said material from a dead body is almost always lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.

It argued that material taken by coroners is being singled out unfairly in this case.

Christopher Albrecht, 30, died in December 2001 when he suddenly plunged his vehicle into a pond.

The coroner determined that an epileptic seizure prompted his accident, but that his death was caused by drowning.

According to the autopsy, a portion of his brain had been removed during his life as part of a surgical procedure related to his epilepsy.



Court Rules Inmates Can't Sue for Property Loss
Breaking Legal News | 2008/01/23 04:31

Abdus-Shahid M.S. Ali's lawsuit against prison guards was based on allegations of harassment and mistreatment. But the Supreme Court's decision yesterday that he is barred from suing rests on an ambiguous federal statute that has confounded the courts and sharply divided the justices.

It involves the word "any."

Ali's lawsuit alleging a missing Koran and prayer rug is barred under the Federal Tort Claims Act, the court said in a 5 to 4 ruling, because the law includes prison guards among those immune from suit.

The confusion in the courts comes because the immunity is mentioned in a section of the law that blocks lawsuits against the government over the "loss of goods, merchandise or other property" detained by customs or excise officers. The law then adds "or any other law enforcement officer."

"Congress could not have chosen a more all-encompassing phrase than 'any other law enforcement officer' " to show that it intended broad immunity, Justice Clarence Thomas wrote for the majority. Therefore, the law "forecloses lawsuits against the United States for the unlawful detention of property by 'any' not just 'some,' law enforcement officers."

Thomas was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg and Samuel A. Alito Jr.

Justice Anthony M. Kennedy wrote the dissent for the rest of the court. He said the court was wrong not to look at the context of the statute -- that it related to customs rather than prisons -- and said the implications of the decision were great.

"The seizure of property by an officer raises serious concerns for the liberty of our people and the Act should not be read to permit appropriation of property without a remedy in tort by language so obscure and indirect," Kennedy wrote.

Ali said in lower-court proceedings that the Koran, prayer rug and other religious materials -- worth about $177 -- went missing during his transfer from a federal penitentiary in Atlanta to Big Sandy prison in Kentucky. He alleged it was one of a number of incidents of mistreatment and harassment of Muslim prisoners.

But a district court said the lawsuit was barred by federal law, and the U.S. Court of Appeals for the 11th Circuit agreed. It is one of six circuits that have read the law to cover all law enforcement officers, in the same manner as Thomas and the court majority. Five circuits have read the law to limit the protection to officers performing customs or excise functions.

Justice Stephen G. Breyer agreed with Kennedy's dissent and added his own to reinforce his view of the importance of context.

"When I call out to my wife, 'There isn't any butter,' I do not mean, 'There isn't any butter in town,' " Breyer wrote. "The context makes clear to her that I am talking about the contents of our refrigerator.

"That is to say, it is context, not a dictionary, that sets the boundaries of time, place and circumstances within which words such as 'any' will apply," Breyer wrote.

The court's decision extends the law to "tens of thousands of officers performing unrelated tasks" to those covered by the statute, Breyer said.



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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet.
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