Legislative and Regulatory Update
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In This Issue [No.91] July 10, 2004
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Cases
Source: Westlawinternational.com
Civil Rights: Excluding female country club members and guest from men's only dining area violated state constitution.
Excluding female country club members and guest from men's only dining area connected to their locker violated their state constitutional right to be free from arbitrary, capricious, or unreasonable discrimination based on gender. A partition or screen and the dress code of appropriate attire for a dining room would protect the privacy of male members. The economic justification based on the preference of men who composed a majority of members was not a valid reason.
Albright v. Southern Trace Country Club Of Shreveport, Inc.
Criminal Justice: Defendant who was resentenced following revocation of community corrections sentence could petition for post-conviction relief.
A defendant whose community corrections sentence for felony and misdemeanor theft offenses was revoked and who was resentenced to a term of eight years, which was greater than the original six-year sentence, was entitled to collaterally attack the sentence in a post-conviction petition. As a matter of first impression, the Supreme Court noted the distinction between the revocation of probation, for which a defendant is not entitled to seek post-conviction relief, and a community corrections sentence revocation. Unlike the revocation of probation, which merely ends the probation term and reinstates the original sentence, the trial court in a community corrections sentence revocation proceeding has the statutory authority to resentence the defendant to any appropriate sentence for any period of time up to the maximum provided by the guidelines.
Carpenter v. State
Government: Citizens of Northern Mariana Islands were citizens of United States.
The provision of the Covenant between the Commonwealth of the Northern Mariana Islands (CNMI) and the United States making all of Section 1 of the Fourteenth Amendment applicable within the CNMI, as if the CNMI "were one of the several States," made citizens of the CNMI citizens of the United States. Thus, citizens of the CNMI were entitled to United States passports.
Sabangan v. Powell
Native Americans: Cooperative law enforcement agreement between tribe and county was permissible.
A cooperative agreement between a county and an Indian tribe for the regulation of law enforcement services on reservation property, which was entered pursuant to a Minnesota statute authorizing the exercise of such concurrent law enforcement jurisdiction, was not preempted by federal Public Law 280, through which Congress granted Minnesota broad criminal jurisdiction over all Indian country in the state except for the Red Lake Reservation. Further, Minnesota did not impermissibly retrocede its authority by allowing such cooperative agreements, which are not a step-back by Minnesota from its jurisdiction, but more akin to an augmentation of its law enforcement powers.
State v. Manypenny
Family Law: Wife was estopped from challenging validity of legal separation judgment.
A wife was estopped from challenging the validity of a legal separation judgment. The wife argued that the order was void for lack of subject jurisdiction, because she had obtained a divorce in Canada, before the legal separation judgment was entered. However, the wife never raised a timely challenge to the court's jurisdiction. Instead, she accepted the financial benefits of the separation order that incorporated the parties' settlement agreement. She then waited for five years to challenge the validity of the court's judgment.
In re Marriage of Chrobak
Legal Services: Judge's conduct in filing new complaints after appointment did not warrant removal of judge from bench.
A county court judge's conduct in filing new complaints for clients after the judge was appointed to the bench did not warrant the removal of the judge from the bench.
Mississippi Com'n on Judicial Performance v. Osborne
Family Law: Massachusetts same-sex marriage decision did not violate guarantee clause of Federal Constitution.
Any alleged violations of the separation of powers principles of the Massachusetts Constitution that occurred when the Massachusetts Supreme Judicial Court (SJC) ordered Massachusetts to recognize the marriage of same-sex couples, as a remedy for the violation of the Massachusetts Constitution resulting from the lack of recognition of such marriages, did not result in a violation of the guarantee clause of Federal Constitution. The resolution of the same-sex marriage issue by the judicial branch did not plausibly constitute a threat to a republican form of government, as the possibility of amending the Massachusetts Constitution was sufficient to eliminate any such claim.
Largess v. Supreme Judicial Court for State of Massachusetts
Labor and Employment: Minimum Wage Act applied to one-time retroactive payment contained in collective bargaining agreement.
The overtime provisions of the Minimum Wage Act (MWA) applied to a one-time retroactive payment based on an hourly wage of actual hours worked, and contained in a collective bargaining agreement signed by an employer and a union. The retroactive payment under a new collective bargaining agreement was tied to hours worked and, therefore, was subject to overtime provisions of the MWA.
Hisle v. Todd Pacific Shipyards Corp.
Family Law: Parental status of ex-partner of natural mother may be established under presumed father statute.
The presumed father provision of the Family Law Act, when read in a gender-neutral manner as required by the Act, could be applied to establish the legal parentage of the former same-sex partner of the natural mother of the child.
Kristine H. v. Lisa R.
Judicial Administration: Judge could not be sanctioned for extra-judicial anti-gay statements that fell within scope of protected speech.
A judge could not be sanctioned under the Code of Judicial Conduct for allegedly failing to promote the public confidence in the integrity and impartiality of the judiciary by making extra-judicial statements in a letter to a newspaper and during a radio network interview to the effect that homosexuals belonged in a mental institution, which statements were in response to an article discussing certain states that extended to homosexual partners the right to sue that was previously afforded only to spouses and family members. The Supreme Court first determined that the issue of gay rights was a matter of political/public importance, and that the judge's statements were supported by his deeply held religious beliefs, and thus, constituted protected speech. Therefore, the sanction was permissible only if it served a compelling state interest. Although the Court recognized that the impartiality of the judiciary was a compelling state interest, the Commission in this case failed to identify how the sanction would serve a compelling state interest.
Mississippi Com'n on Judicial Performance v. Wilkerson
Business Organizations: Franchisor was not vicariously liable for franchisee's alleged negligent supervision of employee.
A franchisor did not have control or the right to control a franchisee's supervision of its employee, who shot his former girlfriend and killed the girlfriend's fiancee, as was required to hold the franchisor vicariously liable for the franchisee's alleged negligence. The provisions in the license agreement that were consistent with quality and operational standards commonly contained in franchise agreements to achieve product and marketing uniformity and to protect the franchisor's trademark were insufficient to establish a master/servant relationship and did not establish that the franchisor controlled or had the right to control the franchisee's hiring and supervision of employees. A franchisor could be subject to vicarious liability for the tortious conduct of its franchisee only if the franchisor had control or a right of control over the daily operation of the specific aspect of the franchisee's business that was alleged to have caused the harm. This was a matter of first impression.
Kerl v. Dennis Rasmussen, Inc.
News
Rwanda's Ex-Minister Loses Genocide Appeal
Eliezer Niyitegeka, a former Rwandan Information Minister has lost his appeal against a life sentence for his role in the Rwandan Genocide of 1994 in which some 800,000 people were killed. Elizer was originally accused of taking part in two horrific acts during the 1994 slaughter of 800,000 ethnic Tutsis and moderate Hutus. Prosecutors claim that he had ordered the beheading and castration of a Tutsi businessman and impaled a woman on a wooden stake and left her for two days. The judge has ordered that Niyitegeka would spend the rest of his life in prison.
US Soldier To Face Fresh Abuse Charges
The US military has announced more charges against Private Lynndie England, who faces a possible court martial over prisoner abuse in Iraq. But Lynndie says she was acting under orders from above. She is being charged with four counts of indecency and one of violating a ban on creating or possessing sexually explicit photographs.
Philip Morris Settles $1bn Row
Philip Morris, the maker of Marlboro cigarettes, is to pay $1.25bn to settle a dispute with the European Union over accusations of cigarette smuggling. The EU had accused the company of colluding with smugglers, thus evading European taxes and customs duties which may have cost the EU millions. Although the firm has denied the accusations, but will pay the money over 12 years to help fight against contraband and counterfeit tobacco products in the EU and in return, the EU has agreed to drop all legal action against the firm.
Nationwide Investigation Into Child Prostitution
Finally Brazil's parliament has paved the way for a nationwide investigation into child prostitution. More than 200 people shall be investigated for crimes against children and adolescents. Those under suspicion include senior public figures, among them politicians, judges, business leaders and priests. It is a high-profile attempt to overcome what the United Nations has called the pervasive sense of impunity surrounding child sex cases in this country.
Enron Ex-Boss Pleads 'Not Guilty'
Enron ex-chairman Kenneth Lay has pleaded "not guilty" to 11 criminal charges over the collapse of the former US energy giant. The charges against Mr Lay include bank fraud, share trading fraud and making false statements. If convicted of all counts, Mr Lay could face up to 175 years in jail and fines totalling $5.75m (£3.10m). Bail was set at $500,000 by US magistrate Judge Mary Milloy, rejecting a request from prosecutors to post bail at $6m on the contention that Mr Lay is a flight risk.
China Overturns Viagra Patent
Officials in China have defended their decision to overturn a patent on the anti-impotence drug, Viagra. This decision of China could have far-reaching consequences. Viagra is made by the world's biggest drug company, the American pharmaceutical giant Pfizer. Pfizer is reported to be appealing against the decision, arguing that it was not asked for the information when the patent was granted, three years ago. The reason behind this action of given by China's state intellectual property is that Pfizer had failed to provide enough information on exactly how the active ingredient - a substance called Sildenafil Sitrate was manufactured.
Germany Approves Immigration Law
Germany's upper house of parliament has approved an immigration law that aims to bring in skilled workers while protecting the country from terrorism. The law, which will come into effect early next year, follows years of heated debate on the issue. Supporters say the law is crucial as the country battles with an ageing population and a skills shortage. This is Germany's first immigration law. It balances Germany's need for skilled migrant workers from outside the European Union, while also making it easier for the authorities to deport people who are suspected of supporting political violence.
Lindh Killer Sentence Overturned By Court
An appeals court in Sweden has thrown out the life prison sentence imposed on the man who killed Swedish Foreign Minister Anna Lindh last year. Mijailo Mijailovic, 25, will now be taken from prison to a closed psychiatric ward after tests concluded he was suffering a mental illness. An initial psychiatric assessment after his arrest concluded he was not mentally ill when he killed Lindh.
France Stands Firm On Scarf Ban
France's education minister has vowed that a ban on Islamic headscarves in state schools will be enforced when the new term starts in September. Muslims say it is their right to wear a headscarf. But the authorities are firm on their stand and maintain that the State would be ready to expel any girl who wore a headscarf to a state school.
US Criticize UN Barrier Ruling
The US state department has described as inappropriate a ruling by the world court that Israel's West Bank barrier is illegal and should be torn down. The Ruling is said to be a damaging distraction from the roadmap peace process. Israelis say the barrier keeps militants away. The International Court of Justice rejected Israel's arguments that it needed the barrier for self-defence.
Securities and Exchange Board of India (Buy-Back of Securities) (Amendment) Regulations, 2004
Notification No: SO745(E) Dated 30.06.2004: The Securities and Exchange Board vide Notification Notification No : SO745(E) Dated 30.06.2004 makes the Securities and Exchange Board of India (Buy-Back of Securities) (Amendment) Regulations, 2004 which amends the provisions contained in Securities and Exchange Board of India (Buy-Back of Securities) Regulations, 1998. The Securities and Exchange Board of India (Buy-Back of Securities) (Amendment) Regulations, 2004 are applicable to buy-back of shares or other specified securities of a company listed on a stock exchange. The regulations also stipulates that the buy-back shall be made only on stock exchanges having nationwide trading terminals.
Cost Inflation Index for the Current Financial Year
Notification No: SO742(E) Dated 29.06.2004: The Central Board of Direct Taxes vide Notification No: SO742(E) Dated 29.06.2004 specifies the Cost Inflation Index for the Financial Year commencing from the 1st day of April, 2004 and ending on the 31st day of March, 2005 having regard to seventy-five per cent of the average rise in the Consumer Price Index for the Financial Year commencing from the 1st day of April, 2003 and ending on the 31st day of March, 2004 for the urban non-manual employees. For the above-mentioned purpose, the Government makes amendment to the earlier Notification No. S.O. 709(E), dated the 20th August, 1998 issued by Ministry of Finance (Department of Revenue), Central Board of Direct Taxes.
Regarding Import of Non-standard Tapes
Circular No: 45/2004 Dated 05.07.2004: The Department of CBEC Customs vide Circular No. 99/2003, dated 27.11.2003 stated that the import of measuring instruments other than standard units of metric system is not permitted except under certain conditions specified in Section 23 of Standards of Weights and Measures Act, 1976. Accordingly, field formations were requested to ensure that non-standard units of weight or measure (including these with dual markings), except those permitted by proviso to Section 23 of the Standards of Weights and Measures Act, 1976, are, on import, either confiscated absolutely or allowed re-export only. The Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution vide D.O. letter No.WM-9(4)/03, dated 27.5.2004 have informed that the provisions relating to 'measuring tapes' laid down in the Standards of Weights and Measures (General) Rules, 1987 has been amended to allow manufacture and verification of measuring tapes with inscription of non-metric scales along with the metric scale without mention of non-metric units like "feet" or "inches" and that the Department of Consumer affairs has no objection to allow the import of such measuring tapes. Accordingly vide Circular No: 45/2004 Dated 05.07.2004 the CBEC Customs Department states that the provisions laid in CBEC Customs vide Circular No. 99/2003, dated 27.11.2003 relating to import of measuring instruments stands modified to the extent of modifications allowed by the Department of Consumer Affairs in regard to this.
Issue of Credit Card
Circular No : DNBS(PD) C.C. No. 41/10.27/2004-05 Dated: 07.07.2004: The RBI vide Circular No: DBOD No.FSC.BC. 106/24.01.019/2003-04 Dated 30.06.2004 confirmed that smart cards/ debit cards/ stored value cards/ value added cards etc. can be issued only by banks and non-banking entities are not permitted to issue such cards. The Rbi vide Circular No : DNBS(PD) C.C. No. 41/10.27/2004-05 Dated: 07.07.2004 reconfirmed that NBFCs are not allowed to undertake credit card business without prior approval of Reserve Bank of India and that issue of debit cards, stored value cards, smart cards, value added cards, etc by NBFCs would have a characteristic akin to demand deposits as they are payable at the convenience of the card holders and acceptance of deposits payable on demand which is a banking function. The issue of such cards is, therefore, violative of the extent NBFC Directions. RBI has advised banks that they should not issue smart / debit cards in tie-up with any other non-bank entities. In regard to credit card business, the RBI vide the above circular clarifies that any company including a non-deposit taking company intending to engage in this activity requires a Certificate of Registration, apart from specific permission to enter into this business, the pre-requisite for which is a minimum net owned fund of Rs.100 crore and subject to such terms and conditions as the Bank may specify in this behalf from time to time.
Guidelines for Issue of Commercial Paper
Circular No: MPD. 251/07.01.279/2004-05 Dated 01.07.2004: Commercial Paper (CP), an unsecured money market instrument issued in the form of a promissory note was introduced in India in 1990 with a view to enabling highly rated corporate borrowers to diversify their sources of short-term borrowings and to provide an additional instrument to investors. The guidelines for issue of CP are presently governed by various directives issued by the Reserve Bank of India from time to time. The Reserve Bank of India vide Circular No: MPD. 251/07.01.279/2004-05 Dated 01.07.2004 states that a Master Circular incorporating all the existing guidelines/instructions/directives on the subject has been prepared.
Master Circular on Export Credit Refinance Facility
Circular No: MPD. No.252/07.01.279/2004-05 Dated 03.07.2004: The Reserve Bank of India has, from time to time, issued a number of guidelines/instructions/directives to banks in regard to matters relating to Export Credit Refinance Facility. To enable banks to have current instructions at one place, the RBI vide Circular No: MPD. No.252/07.01.279/2004-05 Dated 03.07.2004 makes it known that a Master Circular incorporating all the existing guidelines/instructions/directives on the subject has been prepared and that this Master Circular consolidates and updates all the instructions/guidelines contained in the circulars issued upto June 30, 2004, in so far as they relate to providing rupee export credit refinance to banks.
Exim Bank's Line of Credit for USD 5 Million to Government of Angola
Circular No: A.P.(DIR Series) Circular No. 1 Dated 05.07.2004: The RBI vide the above circular makes it known that the Export-Import Bank of India (Exim Bank) has concluded an agreement with the Government of Angola on February 20, 2004, making available to the latter a Line of Credit (LOC) upto an aggregate sum of USD 5 million (U.S.Dollar five million only) and that the credit agreement has become effective from June 16, 2004. The credit is available for financing export of goods and services, which are permitted under the 'Exim Policy' of the Government of India and agreed upon between the Exim Bank and the borrower. The RBI also states that while no agency commission shall be payable in respect of exports financed under the above line of credit, the RBI may consider, on merit, requests for payment of commission upto a maximum extent of 5 per cent of the f.o.b./ c&f /c.i.f. value in respect of goods exported and which require after sales service. In such cases, commission will have to be paid in Angola only by deduction from the invoice of relevant shipment and that the reimbursable amount by the Exim Bank to the negotiating bank will be 90 per cent of the f.o.b./ c&f /c.i.f value minus commission paid. It also states that approval for the payment of commission should be obtained before the relevant shipment is effected. In other cases (i.e. exports not involving after sales service), if the exporter is required to pay agency commission, he will have to use his own resources for such payments.
Exclusion from the Second Schedule to the Reserve Bank of India Act, 1934 - "Credit Lyonnais"
Circular No: DBOD.Ret.BC No. 1/12.06.115/2004-05 Dated 06.07.2004: The Reserve Bank of India vide Circular No: DBOD.Ret.BC No. 1/12.06.115/2004-05 Dated 06.07.2004 advises Banks and Financial Institutions that the name of "Credit Lyonnais" has been excluded from the Second Schedule to the Reserve Bank of India Act, 1934 with effect from 22nd May 2004, i.e. the date on which the relative notification DBOD. No IBS. 1575/ 23.13.025 /2003-04 dated 30th April 2004 was published in the Gazette of India.
Feedback from Trade and Industry on the EXIM Policy Issues
Circular No: 39(RE-2003)/2002-2007 Dated 06.07.2004: The Directorate General of Foreign Trade vide the above circular invites feedback from the trade and industry on various issues to be incorporated in the proposed New Export and Import Policy in view of representations received by it in relation to various matters relating to the Proposed New Export Import Policy. The trade and industry is invited to give clarifications / justifications for inclusion of these points into the new Foreign Trade Policy.
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