Sunday, October 17, 1999
BENCHMARKS
Ruling may save youth from deportation
BY BEN KAUFMAN
The Cincinnati Enquirer
Savvy officials at Lutheran Social Services of Michigan may have saved a young illegal immigrant from being deported to China. Zhen-Hua Gao was 16 when he entered the United States illegally in 1994; within three days, agents of the Immigration and Naturalization Service arrested him and began deportation proceedings.
Because of his age, INS housed the youth in foster-care detention with Lutheran Social Services.
There, social workers found him a family to live with and persuaded an Ingham County probate judge to declare Mr. Gao “dependent.”
That decided, the judge also ruled it would not be in Mr. Gao's “best interest” to be returned to China.
With those rulings, Mr. Gao petitioned INS for “special immigrant juvenile” status.
INS said he was ineligible because the county judge lacked authority to declare him dependent while he was in federal custody.
Mr. Gao sued, lost and appealed successfully when Judges Danny J. Boggs, Eric L. Clay and John C. Godbold said:
• The supremacy clause of the Constitution does not deprive county courts of jurisdiction over juveniles in INS custody.
• The county court decision did not violate the federal government's sovereign immunity because it did not prevent the INS from acting in Mr. Gao's case.
• Mr. Gao was entitled to special immigrant juvenile status and eligible for permanent resident status according to INS rules.
Now, it's up to INS whether to grant that status.
Meanwhile, Judge Boggs noted, Congress tightened federal control over similar cases in 1997. Now, the attorney general must agree to juvenile-court jurisdiction and any dependency order.
When physicians told her to avoid repetitive motions, cashier Angelina Droste sought a transfer within the Blue Ash Kroger store to a job that would not require her to slide items across a price scanner.
The salad bar, floral shop or liquor department would do, she said. However, the first two jobs paid less, and Kroger said it wouldn't move her with her cashier's seniority and pay because that would violate the union contract.
Ms. Droste then complained to the Ohio Civil Rights Commission (OCRC).
Kroger said it offered Ms. Droste a part-time liquor job at a slightly higher scale than cashier. An OCRC investigator said Ms. Droste turned it down; Ms. Droste said she never got the offer.
Ms. Droste eventually refused, then accepted, a full-time salad bar job at the lower contractual pay.
Then she sued, saying Kroger failed to accommodate her physical limitation under the Americans with Disabilities Act (ADA).
Kroger won when the trial judge said the accommodation she sought was unreasonable. She appealed and lost again.
Sixth Circuit Judges Cornelia G. Kennedy, LeRoy J. Contie Jr. and James L. Ryan said there was no opening for a full-time liquor clerk and the ADA did not require Kroger to create a job. Second, ADA did not require Kroger to violate the contract by giving her a salad bar or floral job with her cashier's seniority and pay.
In 1996, Louisville faced a downtown Ku Klux Klan rally, counter-
demonstrations and the likelihood of violence.
As part of a rally-control plan, barriers would separate hostile groups, police would restrict downtown access and anyone entering the demonstration area would have to pass through a metal detector.
A lawyer and a legal assistant who worked in the restricted area sued, saying these restrictions would violate their First Amendment rights of speech and association as well as hurt their business.
A federal judge refused to intervene, and the rallies went off without trouble.
The controversy was over, but 6th Circuit Judges Robert Krupansky, Danny J. Boggs and Eric L. Clay agreed to hear the critics' appeal because the situation could reoccur. They said:
• Rally-control measures were not “unnecessary, oppressive, Draconian, arbitrary, heavy-handed, alarmist, over-reactive and unbridled nefarious authoritarian "police state' exercises of power.”
• Rather, they commended police for a “conscientious effort to carefully formulate a highly prudent, circumspect and well-conceived emergency action plan calculated to address realistic concerns and threats of social disorder, personal injuries, property damage and individual rights violations posed by the impending counterdemonstrations.”
Subsequent “minor inconveniences” to individuals were the price of a plan that responded to compelling public interests, the judges said.
Central to that unanimous opinion was the judges' rejection of the critics' central argument:
“That each and every police action designed to maintain public order which impacts public speech or assembly, including the preparation and execution of emergency safety procedures, transgresses the First Amendment unless that action was legislatively authorized or approved by policy-making officials.”
The 6th Circuit called that argument “misconceived.”
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TRISTATE DIGEST
Warren Co. cable net considered
