Law Commons^™

Education And The Equal Status Acts - Stokes -V- Christian Brothers High School Clonmel, Mel Cousins

Mel Cousins

This case involved a challenge under the Equal Status Act (ESA) to the admissions rules of a Clonmel secondary school which, it was argued, indirectly discriminated against children from the Traveller community. At first instance (before the Equality Tribunal) and on appeal to the Circuit Court it had been held that this rule did have a disproportionate impact on Travellers but the Court and Tribunal differed as to whether this was objectively justified or not. On further appeal to the High Court, McCarthy J. held that there was no disproportionate impact as, adopting a dictionary definition of the term ‘particular’, …

Pregnancy As A ‘Personal Circumstance’? A Case Study Of Equality Jurisprudence Under The Canadian Charter Of Rights, Mel Cousins

Mel Cousins

This article examines the recent decision of the Federal Court of Appeal in Miceli-Riggins v Attorney General of Canada as an example of the approach which the Canadian courts are taking to the interpretation of s. 15 of the Charter of Rights (in the area of social benefits) following the Supreme Court’s recent attempts to ‘restate’ that law in a series of cases. It argued that, whatever the intention of the Supreme Court, the restatement of the law has created general confusion in the lower courts and tribunals. In addition, in cases concerning social benefits, the Court’s statements, in cases …

Pension ‘Splitting’, Property Rights, Equality And The Canadian Charter Of Rights - Runchey V. Canada (Attorney General), 2013 Fca 16, Mel Cousins

Mel Cousins

This note discusses the decision of the Federal Court of Appeal in Runchey v. Canada (Attorney General). The case concerned an equality challenge concerning provisions of the Canada Pension Plan (the Plan) under s. 15 of the Canadian Charter of Rights and Fundamental Freedoms. This was dismissed by the Court. However, the main focus of this note is to point out that it is arguable that the main issue raised in the case (i.e. the loss of pension rights by one spouse without any gain to the other) is not a s. 15 equality issue but rather an unjust deprivation …

Religious Freedom And Workers’ Compensation - Big Sky Colony V Montana Department Of Labor And Industry, Mel Cousins

Mel Cousins

Social security and health care litigation has played a prominent role in the development of the jurisprudence concerning the religious clauses of the US Constitution. At the time of writing further litigation in this area is ongoing with initial rulings having been handed down in relation to challenges concerning the compatibility of the PPACA’s contraceptive mandate with the Religious Freedom Restoration Act (RFRA). This note considers an interesting recent decision of the Montana supreme court which considered the constitutionality of an extension of coverage under the Montana workers’ compensation code to colonies of the Hutterite (or Hutterian or Hutterische) Brethren …

Equal Protection: Immigrants' Access To Healthcare And Welfare Benefits, Mel Cousins

Mel Cousins

The adoption of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter “PRWORA”) led to considerable litigation over immigrants’ rights to welfare benefits and access to health care. The approaches adopted by different courts (both federal and state) diverged significantly based on the various statutory schemes involved as well as distinct approaches to equal protection. However, no “on point” cases have reached the United States Supreme Court, so the “correct” approach remains unclear. Following the fiscal crisis of 2008, several states moved for increased exclusion of certain immigrants residing in the country legally from state healthcare or welfare …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins

Mel Cousins

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) led to considerable litigation on the rights of immigrants to welfare benefits and access to health care. There was significant divergence between the approaches adopted by the different courts (both federal and State) based, in part, on the different statutory schemes involved but also on different approaches to equal protection. However, none of the cases reached the Supreme Court so the ‘correct’ approach remained unclarified. In response to the Great Recession and subsequent budget crises, several States have again excluded certain legal immigrants from the scope …

Workers’ Compensation And The Right To Interstate Travel – Schatz V Interfaith Care Centre, Mel Cousins

Mel Cousins

In Schatz, the Minnesota supreme court considered the interesting question of the right to interstate travel as it affects workers’ compensation. While we know that durational residence requirements for welfare benefits and medical care are likely to be found to be unconstitutional, the US courts have to date not greatly explored where other conditions of social security, workers compensation or welfare schemes may impinge on the right to interstate travel. In order to set the groundwork, Part 1 of this note sets out the Supreme Court’s decisions concerning benefits and the right to travel, focusing on the aspects of most …

Rational Basis With Bite In Minnesota: Unemployment Benefits And Personal-Care Assistants, Mel Cousins

Mel Cousins

The Minnesota court of appeals has recently come to an interesting decision on equal protection and insurability of workers, ruling – in Weir v ACCRA Care - that the exclusion of certain personal care assistants (PCA) from the unemployment insurance scheme was in breach of the Minnesota equal protection guarantee. This note examines this recent decision, contrasting it with the approach under the federal equal protection clause. The case is one of a number in different jurisdictions in which less favorable treatment of ‘family member’ carers has been struck down under equal protection and human rights law.

Freedom Of Speech And The ‘Occupy’ Protests: ‘Narrowly Tailored To Further Significant Government Interests’, Mel Cousins

Mel Cousins

This note examines the spate of recent court decisions concerning efforts by Occupy protestors in various cities of the USA to prevent the removal (or restriction) of their protests. In general, though by no means in all cases, the courts, applying existing freedom of speech principles, have upheld the protestors’ right to protest to some extent but have placed narrow limits around the manner in which this right may be exercised. Following a short introduction (Part 1), Part 2 discuses the approach which has been taken by the courts in recent cases. The approach adopted contrasts sharply with the Supreme …

A ‘Simple Test’: Posthumously Conceived Children And Social Security Entitlements In Astrue V Capato, Mel Cousins

Mel Cousins

This case note examines a recent Supreme Court decision concerning the interpretation of the provisions of the Social Security Act concerning entitlement to survivor’s benefits in respect of children. The case involved the correct construction of the term ‘child’ in the Act but arose, more specifically, from a series of cases concerning posthumously conceived children. Courts of Appeal had come to different interpretations as to correct interpretation of the Act and the Supreme Court intervened to resolve the conflict. The Court accepted the Social Security Agency’s (SSA) interpretation of the legislation. However, although legally correct, this does little if anything …

Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins

Mel Cousins

The US courts have considered a number of cases where a person has argued that his or her exclusion from insurability (either in social security, unemployment insurance or workers compensation) was in breach of the guarantee of equal protection in federal and/or state constitutions. The Social Security Act had originally entirely excluded domestic and agricultural workers. Early cases upholding the constitutionality of the Social Security Act had, inter alia, held that the exclusion of certain classes of worker from the scope of coverage did not render the legislation unconstitutional. However, these cases had not involved claims of racial, economic or …

Access To Quasi-Judicial Decisions – Jama V Minister For Social Protection, Mel Cousins

Mel Cousins

This case involves the important issue of access to the decisions of social welfare appeals officers. The Irish High Court concluded that there was no duty on the Department to maintain a database or open library of decisions to which the public may have access and, therefore, no question of a right of access thereto arose. However, it is submitted that the legal analysis of the general issue is doubtful.

Black Lung Benefits And Constitutional Challenges: The Byrd Amendments To The Black Lung Benefits Act; And The Kentucky Consensus Procedure, Mel Cousins

Mel Cousins

This note discusses two recent issues where legislation concerning benefits for coal workers affected by pneumoconiosis (black lung) was challenged under the US Constitution, including issues of due process, equal treatment and the takings clause. Congress has recently restored earlier legislation making it easier for the survivors of workers affected by black lung to qualify for federal benefits. Several courts of appeal have upheld this legislation against constitutional challenges from employers holding that it is neither in breach of the employers’ due process rights nor a taking within the meaning of the Fifth Amendment to the Constitution. In contrast, the …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits, Mel Cousins

Mel Cousins

Equal Protection, Workers Compensation And Offset Of Benefits (Again) – Caldwell V Maco Workers Compensation And Caputo V Workers’ Compensation Appeal Board (Commonwealth Of Pennsylvania)

Mel Cousins

As noted in an earlier article, one issue which has received considerable attention in terms of equal protection challenges in US courts is that concerning the offset of one type of social security benefits with worker’s compensation payments. The Supreme Court in Richardson v Belcher upheld the reduction in social security disability insurance because of receipt of a state worker’s compensation payment as rationally based and free from invidious discrimination. The Court and various federal courts of appeals have subsequently shown little interest in subjecting such offset provisions to more than a minimal level of scrutiny. State courts have also …

The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …

The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the Health Care Reform Act (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with at least 20 different cases from both states and organizations and individuals currently under way. Although this litigation is at an early stage, there has already been considerable academic (and other) interest with a number of websites tracking the development of the litigation and providing links to the considerable commentary which has already been developed (albeit much of it inevitably speculative in nature). There have now been five substantive rulings …

The Defense Of Marriage Act (Doma), Equal Protection And State Authority – Gill V Office Of Personnel Management And Commonwealth Of Massachusetts V United States Dept Of Health And Human Services, Mel Cousins

Mel Cousins

The issue of the recognition of same-sex marriages and the constitutionality of a refusal to recognize such marriages has received considerable attention in the US state courts in the last decade. A number of state courts have ruled that, state constitutions require the recognition of same-sex marriages. However, relatively few cases had reached the federal courts and in almost all these cases the restrictions had been upheld. However, two recent challenges to a ban on same-sex marriages in California (Proposition 8) and restrictions of the rights of same-sex couples under federal law (DOMA) have now been successful before federal district …

Social Security, Modes Of Communication For Blind And Visually Impaired Persons And The Rehabilitation Act – American Council Of The Blind V Astrue, Mel Cousins

Mel Cousins

This note examines a recent District Court decision in which the plaintiffs successfully challenged the adequacy of modes of communication by the Social Security Administration in its notices and other correspondence to blind and visually impaired persons. The case shows the potential of the Rehabilitation Act to improve services to persons with disabilities.

Coal Workers’ Pneumoconiosis And Equal Protection In Kentucky – Cain V Lodestar Energy, Gardner V Vision Mining And Martinez V Peabody Coal, Mel Cousins

Mel Cousins

This note discusses a number of recent decisions of the Kentucky courts concerning coal workers pneumoconiosis and equal protection. The Kentucky Court of Appeals has recently found unconstitutional a special ‘consensus’ procedure by which coal workers affected by pneumoconiosis were required to prove their claim for workers compensation. The case is currently under appeal to the Kentucky Supreme Court.

Equal Protection, Workers Compensation And Offset Of Benefits – Merrill V Utah Labor Commission And Satterlee V Lumberman's Mutual Casualty Company, Mel Cousins

Mel Cousins

A Step Too Far - Posthumously Conceived Children And Social Security Entitlements In Vernoff V Astrue, Mel Cousins

Mel Cousins

This case note examines a recent decision of the Court of Appeals for the Ninth Circuit concerning the entitlements of posthumously conceived children under social security. In contrast to its earlier (expansionary) decision in Gillett-Netting, here the Court set out the limits to how far it is willing to push the interpretation of the (convoluted) legislation and refused to find a right to benefit where there was no evidence that the father had consented to (or even considered) having a child post-mortem.

Homelessness And The Charter Of Rights, Mel Cousins

Mel Cousins

There have, to date, been relatively few cases concerning homelessness and the Canadian Charter of Rights. Yet the rights set out in the Charter, such as the right to freedom of expression (s. 2(b), the right to life, liberty and the security of person (s. 7) and equality rights (s. 15) should all play an important role in protecting the position of a disadvantaged group such as the homeless. This article looks at some of the main cases concerning homelessness and the Charter (part I). It then goes on to look at the constitutional case law of the United States …

Posthumously Conceived Children And Social Security Entitlements; Or Things (Not) To Do In Little Rock When You’Re Dead, Mel Cousins

Mel Cousins

This case note examines a number of recent decisions of the Arkansas state courts concerning the entitlements of posthumously conceived children under social security and workers compensation law. These decisions highlight the differences in approach which have been adopted in this important area and the difficulties caused by the lack of a uniform approach in federal law.