Wasserman's Appellate Summaries
September 22, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
*Kirkorowicz v. California Coastal Commission
Case No. D034287
California Court of Appeal, Fourth District, Division One
ENVIRONMENTAL-CALIFORNIA COASTAL ACT-JURISDICTION TO REGULATE DEVELOPMENT OF WETLANDS-DEFINITION OF WETLANDS-QUALITY OF WETLANDS
The California Coastal Commission denied a Coastal Development Permit for Kirkorowicz to expand horse stables and boarding facilities on his Encinitas property. Kirkorowiz secured a writ of administrative mandamus to set aside the denial and to rehear the matter to determine whether the property includes protected wetlands subject to protection under the California Coastal Act.
HELD: The Coastal Act defines "'wetland'" as lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, fresh water marshes, open or closed brackish water marshes, swamps, mudflats, and fens. The CCC has expanded this definition to include land in which saturation with water is the dominant factor determining the nature of soil development and the types of plant and animal communities living in the soil and on its surface. Eighteen species of flora found on the effected land were wetland species. The fact that the wetlands are somewhat degraded is not relevant. The Coastal Act does not distinguish between wetlands according to their quality. Reversed.
Tenderloin Housing Clinic, Inc. v. Astoria Hotel
Case No. A088494
California Court of Appeal, First District, Division Three
ORDER
Modification of opinion filed herein on August 18, 2000, not effecting the judgment.
*Tagaga v. Immigration and Naturalization Service
Case No. 98-71251
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-PETITION FOR ASYLUM-WELL FOUNDED FEAR OF PERSECUTION-EFFECT OF DESERTION FROM MILITARY SERVICE
In 1987, Fiji had a bare majority of Fijians. That year the Indian-dominated Labour Party defeated the Alliance Party in an open and free election. One month later there was a military coup to overthrow the new government. The military regime arbitrarily arrested and detained Indo-Fijians, and encouraged and discrimination and violence by ethnic Fijians against Indo-Fijians. Tagaga, an ethnic Fijian, serving in the military, believed Indo-Fijians deserved to be treated equally and have the same legal rights as others living in Fiji. He joined the Alliance Party. Tagaga was transferred to Lebanon, where he was advised that he would be arrested if he returned to Fiji. He caused his family to leave Fiji and came to the U.S. period as visitor and sought asylum. His asylum request for him and his family was denied and affirmed by the BIA.
HELD: To establish eligibility for asylum, an applicant must prove that he is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. A well-founded fear of future persecution may be established by proving either past persecution or good reason to fear future persecution. The Court concluded that a reasonable fact finder would be compelled to conclude that Tagaga had a well-founded fear of future persecution, and that he also has met the higher burden for withholding of deportation. An alien may qualify for refugee status after either desertion or draft evasion if he or she can show that military service would have required the alien to engage in acts contrary to basic rules of human conduct. Reversed and remanded.
Hooks v. Clark County School District
Case No. 99-15225
U.S. Court of Appeals for the Ninth Circuit
OTHER-AMERICANS WITH DISABILITY ACT-HOME SCHOOLING-RIGHT TO SPECIAL EDUCATIONAL ASSISTANCE FOR AT HOME SCHOOLING STUDENT-DISCRETION OF SCHOOL DISTRICT TO PROVIDES SPECIAL SERVICES TO HOME SCHOOLED CHILD
Christopher Hooks receives his education at home from his parents. In 1996, Christopher was deemed to be medically eligible for speech therapy services. The Hooks request for speech therapy services was denied by the school district, in accordance with its policy. The Hooks brought an action under the Individuals with Disabilities Education ACT and raised the issue of the constitutionality of denying benefits to home-educated children. The district court dismissed the action.
HELD: After the suit was filed the Nevada legislature provided that home educated children are eligible for special service, including speech therapy. The case is not moot, because the Hooks seek reimbursement for what they expended before the amendment to the statute. In Nevada, children taught at home can be excused from Nevada's compulsory attendance law. Exempted educational environments avoid certain regulatory requirements. Nothing in the language of the IDEA provides services for children who are not enrolled in school, however "school" is defined. States have discretion in determining whether home education constitutes an IDEA-qualifying private school. The challenged regulatory scheme does not unconstitutionally offend equal protection principles or infringe on the parents' liberty interest in guiding their child's education. To withstand Fourteenth Amendment scrutiny, a regulation need only bear some rational relationship to a legitimate governmental purpose, unless the regulation implicates a fundamental right or an inherently suspect classification. The regulation does not infringe on a fundamental right or lack a rational basis and equal protection and due process principles are not offended. Affirmed and remanded, in view of the amendment to the statute.
*Change in law, interesting case, or just watch out!
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page