Tuesday, February 1, 2011

Children of immigrants should not be punished, court says

Late last week, recently confirmed U.S. district court judge Tanya Walton Pratt temporarily enjoined a the Indiana Department of Health's practice of denying paternity affidavits to men who were unable to provide the state with their Social Security number. The state's practice, started in July 2010, effectively denied U.S. citizen children whose fathers could not produce a Social Security number, the opporunity to have their father's name on their birth certificate and be legitimated.

Judge Pratt found the evidence to show likelihood of success on the merits that this practice is a violation of the Equal Protection clause, and analyzed U.S. Supreme Court jurisprudence which has found that children should not be punished by their parents' immigration status. She also found that legitimating children is in the public interest. The court ordered the Indiana Department of Health to revert back to its previous practice accepting the paternity affidavits without the Social Security numbers. The court noted that there had been no change in law
that led to the change in practice, only a change in personnel at the Indiana Department of Health.

There has been some negative reaction to the opinion, see for example comments by readers in the Indianapolis Star newspaper, which reported the decision: ("If they don't have papers they don't need to be in this country, much less this state. Send their butts back to where they came from. Just another example of our tax money being wasted on illegals."). However, this decision strikes me as a well reasoned and sensible opinion, since the Supreme Court jurisprudence is clear regarding not holding children responsible for the actions of their parents.
The case, L.P. v. Commissioner of Health, Case No. 1:10 cv- 1309-TWP- TAB, was filed by the Indiana Civil Liberties Union and continues pending in the Southern District of Indiana.

This case brings to bear concerns about U.S. citizen newborns born of undocumented parents, who may be affected by state policies and practices. There appears to be a trend: in California, there have been ballot proposals to deny birth certificates to children born of parents who cannot prove their immigration status in the United States. Other states, like Arizona, have attempted to enact legislation to identify the birth certificates of these children differently than the rest of the birth certificates issued in this state.

Saturday, January 29, 2011

No need for Spanish warnings, federal court says...

Thanks for Prof. Alberto Bernabe, of Chicago's John Marshall School of Law, who has brought this recent case to my attention. In Farias v. Mr. Heater, 2010 WL 4814660, the United States District Court of the Southern District of Florida found that there is no duty to provide safety warnings about products in Spanish. In doing so, the court dismissed the lawsuit of a Spanish speaker who had sued the manufacturer of two space heaters purchased at a Home Depot in Miami, following a fire in her home caused by the heaters.

In the court's view, the plaintiff, who has limited command of the English language (she did understand the word "caution") failed to investigate the danger to which she had been alerted by the manufacturer in the user's manuals for the heaters. The court also distinguished an earlier case, Stanley Industries v. W.M. Barr, 784 F.Supp. 1570 (S.D. Fla. 1992) in which a duty to warn in Spanish was found when the product was marketed specifically to a Spanish speaking population.

Prof. Bernabe has mixed feelings about this opinion, which I encourage you to have a look at in his Torts blog http://bernabetorts.blogspot.com. To me, the opinion does not recognize the reality of the limited availability of adult education English instruction for immigrants in the U.S. When last I worked directly with immigrant clients, I recall their dismay at the long waits for English classes. I don't imagine the situation has improved much in this age of budget cuts for education and human services, so this case puts immigrants' safety at risk, and as such, is cause for concern.