Model wrongly thought to be HIV-positive through use of stock photo was defamed, appeals court says

Tort Law

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A model falsely identified as HIV-positive when her stock photo was used in an educational ad campaign met the standard for proving defamation per se, a New York appeals court has ruled.

The Appellate Division, First Department, ruled on behalf of Avril Nolan in a decision on Tuesday, report the New York Law Journal and Courthouse News Service. Nolan claimed the ad accused her of having a “loathsome disease.”

Nolan’s photo was used in a print ad campaign by the New York State Division of Human Rights. Next to her photo was copy reading “I am positive+” and “I have rights.” Smaller print said people who are HIV-positive are protected by state law.

Nolan had originally posed for the photo for an online article about New Yorkers’ music interests, and the photographer sold the photo to a stock photo agency without Nolan’s permission. The Division of Human Rights was wrongly told Nolan had signed a release for use of the photo. When alerted to Nolan’s objection, the division pulled the ads.

Nolan asserted the statement about HIV qualified as a “loathsome disease,” one of four categories of statements in New York that constitute defamation per se—defamation that is so harmful to reputation that economic damages need not be shown. The other categories are false statements about serious criminality, that are professionally damaging, or that claim unchastity.

Nolan’s $1.5 million suit alleged emotional distress, but not economic damages. A trial judgment granted summary judgment to Nolan on the defamation per se claim, and the appeals court affirmed.

Society has not progressed to the point where calling someone HIV-positive is not defamatory, the appeals court said. HIV continues to be a significant stigma, and “it can still be said that ostracism is a likely effect of a diagnosis of HIV,” according to the court.

The appeals court stressed it doesn’t actually consider HIV to be a loathsome disease.

“We prefer a formulation that makes clear that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society,” the court said.

Nolan had also sued the photo agency in a separate suit, which has settled, according to the New York Law Journal.



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Some states are welcoming back ex-offenders to work behind bars

Criminal Justice

Cynthia Stubbs, a Braille transcription services plant manager, helps Daniel Beverly as he transcribes a textbook to Braille at Scotland Correctional Institution in Laurinburg, North Carolina./Justin Cook for The Marshall Project.

In 2010, Cindy Stubbs was nearing the end of a 14-year sentence in a South Carolina prison, determined never to return. A mother of four, locked up on gun and drug trafficking charges since she was 34, Stubbs worked inside the prison translating textbooks to Braille. Three months before her release, she caught a break: a telephone interview at another Braille plant, in North Carolina, led to a job offer.

But there was a catch. This plant was also in a prison. She’d be managing prisoners, returning every weekday to exactly the sort of place she’d spent years waiting to leave.

“At the beginning, it wasn’t easy,” said Stubbs, now 55. “Some people in society feel when someone is able to come out of prison and make a good salary and a good position, they don’t feel like you are deserving of it.”

She is one of a small number of former prisoners who have returned to penitentiaries as employees after their release. At least 30 states have policies to allow such hiring, though they do not necessarily track how many they have brought aboard. But a few agencies are beginning to formalize programs, with the explicit goal of reducing the stigma that can follow ex-prisoners as they look for jobs.

In December, a new law began allowing the Michigan Department of Corrections to hire those it has released, after the agency openly promoted the idea.

“We knew that as we were going out every day talking to the business community and asking them to hire our parolees, that it would be hypocritical if we wouldn’t hire them ourselves,” DOC spokesman Chris Gautz said.

In the many states that allow such hiring, there can be myriad restrictions. Most do not allow ex-prisoners to be correctional officers. Texas largely limits hiring to certain positions, such as substance abuse counselors and contract construction workers, and some sex crime convictions are disqualifying. California bans ex-prisoners from jobs that involve access to personal or medical information of other staff and inmates. Minnesota makes them wait a year after release, and Wyoming won’t let them work in the same facility where they served until five years after release.

Many states don’t track how many ex-prisoners they have hired, but those that do aren’t reporting big numbers; Arizona said they have had hired “at least 11” ex-prisoners.

The Pennsylvania Department of Corrections changed its policies in 2016 and sent its own recruiters to job fairs for ex-prisoners, but none applied. (Karena Parks, who runs the agency’s human resources bureau, thinks it’s only a matter of time.)

It might not just be the restrictions. “I was very apprehensive,” said David Van Horn, the first ex-prisoner hired by the New Mexico Department of Corrections in 2015 as part of a new “Returning Citizen Program.” He was released on parole after spending 20 years in prison for killing 68-year-old Norma Clouse in an arson attack after he “abused and terrorized” her and her husband, according to legal records, and then shot two law enforcement officers.

He was hired to work in a kitchen, in a cafeteria that feeds officer cadets. The response to his hiring illustrated the political obstacles programs can face: the family of Van Horn’s victim was outraged. “Burning somebody alive is one of the worst things you can do to a person,” said Clouse’s brother, John Bailes, noting that he was not informed of Van Horn’s parole or hiring before they happened. “He’s supposed to find his own job and housing.”

The corrections union noted Van Horn’s starting salary would be $17 an hour, more than rookie officers, though as a contract worker he’d be paying higher taxes. “He’s going to be interacting with the same inmate population he served with, while earning four more bucks an hour than the officers who protected him,” union chapter president Robert Darnell said in a press release. “It’s a bridge too far.” Van Horn said his pay was dropped to $15 by the administration, which did not respond to a request for comment. He is no longer in the job.

Other corrections officer unions around the country have expressed similar concerns. In Michigan, a union newsletter said the new policy was met “with mixed feelings and some confusion.” Spokeswoman Anita Lloyd said in an interview that the union is more comfortable with the formerly incarcerated working in rehabilitation programs.

Ex-prisoners who have returned have said they can serve as role models for the people still inside. “I really want them to know there is hope out there,” said Larry Vene, who served more than four years in Washington state for producing methamphetamine. He learned to be a wastewater treatment plant operator while inside, and then returned to the department in 2013 to train current prisoners. “They listen to me because I’ve lived what they’re living.”

For Stubbs, who still manages 22 prisoners at the Braille plant in a North Carolina prison, the biggest shift was mental. Interacting with other staffers in her new job, she said, her mindset was “stay behind the yellow line” and “yes, sir” and “no, sir.” One day an administrator shook her by the shoulders. “She said, ‘You are not an inmate anymore’,” Stubbs said. “It took me a minute to adjust.

Like Vene, she enjoys being a role model for her employees, but her past also gives her a nose for trouble. Before opening, she identified every hiding place in the office, filled with cubicles, bookshelves and computers. She knew which inmates to hire: avid readers with no “disobeying orders” violations in their jackets.

Six months after opening, an inmate asked how she knew so much about prison. She told her story. “My history is an encouragement to them,” she said, “but they also know I do this for a living, and I don’t put up with any foolishness.”

This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.



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2 top partners among group of Quinn Emanuel lawyers leaving to start new firm

Law Firms

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Quinn Emanuel Urquhart & Sullivan announced Thursday that two top partners and a “handful” of other lawyers are leaving to form their own firm.

The departing partners are Philippe Selendy, chair of the firm’s securities and structured finance practices, and Faith Gay, co-chair of the national securities practice, Bloomberg Big Law Business reports.

Six veteran trial lawyers from Quinn Emanuel, all partners, will also be joining the new firm of Selendy & Gay, according to Bloomberg. The group includes Selendy’s wife, Jennifer.

Managing partner John B. Quinn said in a statement that the departures would have little impact.

“Our firm has never been stronger, and has never had a deeper bench of veteran and next generation talent,” he said. “We of course respect our valued colleagues’ decision to take their practice to a smaller platform, but we do not expect these departures to have any significant impact on our practice or our revenue.”

With over 720 lawyers in 21 offices in nine countries, Quinn noted that 2017 “was our highest year ever in terms of revenue, and we expect this year to be even better.”

Individual lawyers in a number of Quinn Emanuel offices have left to start their own firms over the years, according to Peter E. Calamari, the managing partner of Quinn Emanuel’s New York office. Such departures are “a sign of our firm’s maturity and great success,” he said in the statement.

Selendy said in a statement that “Quinn Emanuel remains close to my heart” and he looks forward to working with the law firm in the future. Gay said she felt privileged to have worked at Quinn Emanuel.

In an interview with Bloomberg last summer, Selendy noted the settlement of several cases he had overseen against large banks for conduct before the recession. Selendy said he was looking at market manipulation cases in the energy sector and he would like to also handle pro bono cases.

He told Bloomberg in that interview that partners had differing views on the types of cases they would like to handle and called the firm “fractious.” Some lawyers prefer high-profit litigation and others are interested in public-interest work, he said. Selendy said there is often active dissent among lawyers, which is to be expected from litigators.

Bloomberg was not able to reach Selendy to ask if those comments last year had anything to do with his departure.

Quinn Emanuel partner William Burck has been in the news for his representation of President Donald Trump’s former chief strategist Stephen Bannon, White House counsel Don McGahn and former White House chief of staff Reince Priebus.

The firm announced last August that it was encouraging associates to stay with an “associate longevity bonus pool.”

Updated at 4:30 p.m. to include new information from Bloomberg.



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Health-care workers with moral or religious objections have support of new HHS division

Health Law

Health care workers 750

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The Department of Health and Human Services has a new division to help protect health-care workers with moral or religious objections to providing certain types of care.

The agency’s website gives examples of the types of procedures that could spur objections: abortions, sterilization and assisted suicide, the Washington Post reports. But some say the broad language could also cover objections to treatment for transgender patients seeking sex reassignment surgery.

Others raised fears that doctors would refuse to provide fertility treatments to lesbians or pharmacists would refuse to provide certain types of contraceptives, the New York Times reports.

The new division, the Conscience and Religious Freedom Division, will be part of the HHS Office of Civil Rights, according to a press release. The Wall Street Journal, Politico and NPR also have stories.

The announcement represents a change from Obama administration policy that barred health-care workers at facilities receiving federal funds from refusing to treat people who are transgender or seeking abortions. That policy was never carried out because of an injunction by a Texas judge.

The Trump administration has indicated it will change the never-enforced regulation. The change is expected to allow health workers to refuse to perform abortions or services related to gender transitions, according to the Journal.

Legal challenges are expected to be filed by opponents of the new division. NPR cites a statement by Louise Melling, deputy legal director at the American Civil Liberties Union. “Denying patients health care is not liberty,” Melling said. “Choosing your patients based on their gender or gender expression is not freedom.”



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Trump appointee writes appeals opinion ordering reconsideration of Mexican mother’s asylum request

Immigration Law

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A federal appeals court has vacated an immigration decision against an Ohio mother because of an immigration court’s failure to consider evidence that she would be persecuted by a drug cartel.

The Cincinnati-based 6th U.S. Circuit Court of Appeals ruled in an asylum case by Maribel Trujillo Diaz, report the Washington Post, USA Today and Courthouse News Service.

Trujillo Diaz, a mother of four with no criminal record since entering the country in 2002, was deported last April. She had won support from Ohio Gov. John Kasich and Catholic dioceses in multiple states that gathered petition signatures calling for a suspension of the deportation.

The author of the opinion was Judge John K. Bush, a Trump appointee who attracted controversy because of conservative blog posts written under a pseudonym. Other judges on the panel were Gilbert Merritt and Karen Nelson Moore.

Trujillo Diaz testified in 2012 that she feared for her safety in Mexico because she believed the drug cartel, La Familia, would seek revenge for her brother’s refusal to work for the cartel before he fled to the United States. The immigration judge had ruled against Trujillo Diaz because the cartel had not harmed her or any family members besides her brother. The Board of Immigration Appeals dismissed her appeal.

Nonetheless, Trujillo Diaz was allowed to remain in the United States under an Immigration and Customs Enforcement order of supervision. Last February, she learned that her father was kidnapped by another Mexican cartel, the Knights Templar. The kidnappers told Trujillo Diaz’s father they were looking for his son—Trujillo Diaz’s brother.

Trujillo Diaz sought to reopen her case under an exception to the time limit. Two days after her motions were filed, ICE agents detained Trujillo Diaz and scheduled her deportation. She asked for a stay of her removal, but the BIA and the 6th Circuit denied the request and Trujillo Diaz was later deported. In May, the BIA denied the woman’s motion to reopen her case, finding she had not demonstrated eligibility for asylum.

The 6th Circuit said the BIA abused its discretion because Trujillo Diaz had presented evidence of an individual fear of persecution. An affidavit by her father “contained concrete, factual assertions as to the familial motivation behind his kidnapping and the threat of harm to Trujillo Diaz,” the court said.



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Can Jointly Owned Funds Be Released Without a Tax Waiver From New Jersey?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate & Probate Administration Attorney

What is the law concerning the release of funds held in the name of a person individually or jointly with another upon death? The law regarding the release of funds held by a bank, trust company, credit union, corporation, or person may release any amount up to 50 percent of the entire amount of funds on hand held in deposit, which belong to;

  1. An Executor;
  2. Administrator;
  3. Legal representative of the decedent;
  4. Surviving joint tenant;
  5. The estate of a minor where title to said funds are held in the name of a custodian for said minor, without the written consent of the Director, upon the application of such proper party to the institution, association, organization, corporation or person above mentioned.

The above provisions apply to each account and to each institution and person listed above with whom a decedent has any funds on deposit, including Certificates of Deposit. The maximum amount that can be released is 50 percent of the funds in the entire account whether such account is held in the decedent’s name only or jointly with another. Where the decedent holds an account jointly, only one half of the funds may be released, not the half claimed by the joint owner and an additional half of the funds belonging to the decedent.

In addition to the amount permitted to be released by an institution, association, organization, corporation, or person referenced above:

  1. Pay any and all checks drawn on any account owned by a decedent individually, jointly, or otherwise, when said checks are issued prior to death and presented for payment within 10 days following the decedent’s date of death;
  2. Pay any checks in any amount for which there are sufficient funds held in deposit, drawn on any account owned by a decedent individually, jointly or otherwise, representing full or partial payment of any New Jersey Transfer Inheritance or Estate Taxes and made payable to New Jersey Inheritance and Estate Tax;
  3. Liquidate the loan of any decedent who has pledged the pass book representing a savings account as collateral for a loan, where upon the death of such a decedent the loan is in default and then make 50 percent of the remaining funds available under the blanket waiver; but

Securities of a New Jersey Corporation registered in the name of a decedent and issued by any bank, or savings and loan association situated in this State, are not subject to the Blanket Waiver rule provided in this section. Therefore, the written consent of the Director must be obtained in order to transfer or release such assets.

To discuss your NJ Estate & Probate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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