In a petition for
habeas corpus before the district court, a prisoner was entitled to the
protections of the Third Geneva Convention as a prisoner of war. The Third
Geneva Convention applied to all persons detained in Afghanistan during the
hostilities there, the combatant asserted his entitlement to prisoner of war
(POW) status and the Army's regulations provided that his status was "in
doubt," the determination by the President of United States, that detained
al Qaeda members were not POWs under the Geneva Conventions, was not a
determination by a "competent tribunal," and the purpose of the Geneva
Conventions was to prescribe rules by which rights of individuals could be
determined.
Hamdan v. Rumsfeld
A mother lacked
standing to raise a damage claim for herself, arising from her minor daughter's
injury in a bicycle-car accident with the defendant driver. The undisputed facts
showed that the mother had failed to regularly contribute to her daughter's
support for some time, both before and after the accident, as required by the
statute authorizing a parent to bring an action as a plaintiff for an injury or
death to a child.
Blumenshein v.
Voelker
Minnesota's primary
threshold law which deprived major political party candidates of access to the
general election ballot violated constitutional rights to vote and to associate
for the advancement of political beliefs under the First and Fourteenth
Amendments. The primary election threshold for access to the general election
ballot was ten percent of the average number of votes received by that party's
candidates for state constitutional offices in the previous general election.
Each party had a different primary vote threshold. The candidates' party had
more voter support than another party with a candidate who had satisfied the
threshold. The law thus could not be justified as a statute that restricts
ballot access to candidates who demonstrate some minimum level of support. The
law thus served no rational state purpose.
In re Candidacy of
Independence Party Candidates Moore v. Kiffmeyer
A detainee being
held by the Immigration and Customs Enforcement (ICE) following the
reinstatement of a deportation order failed to exhaust his administrative
remedies, and the District Court thus lacked jurisdiction over his petition for
habeas corpus, in which he claimed that he was a United States citizen. He did
not present his claim to the Immigration Judge (IJ) during the original
deportation proceedings, and he did not appeal the IJ's decision to the Board of
Immigration Appeals (BIA). He failed to present his claim to the immigration
officer who adjudicated the reinstatement of the deportation order. He also
failed to submit an application for a certificate of citizenship to the
Citizenship and Immigration Service (CIS) or any of its predecessor agencies.
Boyd v. Immigration
and Customs Enforcement
The public policy
rationale that shields Virginia charities from liability for acts of simple
negligence does not extend to acts of gross negligence and willful and wanton
negligence. Unlike acts or omissions giving rise to claims of simple negligence,
conduct involving gross negligence or willful and wanton negligence can never be
characterized as an attempt, albeit ineffectual, to carry out the mission of the
charity to serve its beneficiaries. This was a matter of first impression in
Virginia.
Cowan v. Hospice
Support Care, Inc.
A defendant has the
right to appear pro se during both the guilt and penalty phases of a capital
prosecution. In this case, a defendant claimed in his appeal of his capital
murder conviction that the trial court violated his rights under the Sixth and
Fourteenth Amendments when it denied his motion to proceed pro se. In an issue
of first impression, the court found that a defendant has the right to appear
pro se during both the guilt and penalty phases of a capital prosecution. The
court noted that the Sixth Amendment did not provide merely that a defense shall
be made for the accused, rather it granted the accused personally the right to
make his defense. In addition, the court noted that if a capital defendant
knowingly and intelligently waives counsel, standby counsel should be appointed
during both the guilt and penalty phases. The court noted the risks facing a
defendant in a capital trial, as well as the court's abiding interest in
ensuring that justice is done, necessitates the added protection of standby
counsel.
State v. Reddish
Involuntary
dismissal of a teacher's aide's claim under the Illinois educational support
personnel layoff statute was not warranted. A genuine issue of material fact
existed regarding how broadly the school board defined the category of positions
in which the teacher's aide/library aide worked. This issue of fact precluded
the involuntary dismissal of the aide's claim under the statute, which required
that educational support employees be included in seniority lists for all the
positions they were qualified to hold.
Cook v. Board of
Educ. of Eldorado Community Unit School Dist. No. 4
The class
certification of former employees who sought monetary damages, as well as
medical monitoring and surveillance for their potential exposure to toxin,
failed for a lack of cohesiveness, under the rule allowing a class action to be
maintained when final injunctive relief with respect to the class as a whole was
appropriate. The individual questions presented included whether the employer
owed a duty, whether there was a breach of that duty, whether a
statute-of-limitations defense applied, and questions of contributory
negligence. Further, the members of the proposed class spanned 46 years,
multiple contractors, and multiple locations within plant, and numbered between
4,000 and 7,000. This was a matter of first impression.
Wilson v. Brush
Wellman, Inc.
A trial court's
closure of the courtroom during voir dire in a prosecution for first degree
murder, first degree attempted murder, first degree assault, and reckless
endangerment violated the defendant's constitutional right to a public trial.
The trial court's interest in accommodating a 98-member jury pool together in
the courtroom, which necessitated the exclusion of the defendant's and the
victims' families, was not a compelling interest. Further, the court failed to
identify an interest in courtroom safety with sufficient particularity.
Moreover, even if such interests had been compelling, the closure order was not
narrowly tailored to protect such interests and no consideration was given to
less restrictive alternatives.
In re Personal
Restraint Petition of Orange
As a matter of first
impression in Michigan, the Michigan Court of Appeals held that non-uniform
amendments to restrictive covenants require the unanimous consent of affected
property owners. The Court concluded that to hold otherwise would leave present
property owners in an uncertain position whenever their covenants allowed for
amendments with less than the unanimous consent of the affected owners. The
Court stressed that a crucial aspect of restrictive covenants is that each
property owner relies on the fact that all owners are bound equally, so that no
burdens can be imposed on one that all are not willing to assume.
Maatta v. Dead River
Campers, Inc.
Two Florida cities'
juvenile curfew ordinances were not narrowly tailored to serving the compelling
governmental interests of protecting juveniles from victimization and reducing
juvenile crime, as an element of strict scrutiny of the impairment of juveniles'
constitutional rights to privacy and freedom of movement. Statistical data
failed to establish the necessary nexus between the governmental interest and
the classification created by one city's ordinance. The broad citywide coverage
of both cities' curfews included otherwise innocent and legal conduct by minors,
even where they had the permission of their parents. Finally, the curfew
ordinances imposed criminal penalties on juveniles and parents for second and
subsequent curfew violations, and one city's ordinance imposed criminal
penalties on business operators for knowingly permitting juveniles on their
premises during curfew hours.
State v. J.P.
A regulation
amending the procedure previously utilized for determining whether a removal
order should be reinstated, under which the necessary determinations of whether
an alien has previously been deported and of whether he or she has illegally
reentered the country are made, not by an immigration judge, but by an
immigration official, who then makes the ultimate decision of whether to issue a
reinstatement order, was ultra vires, as conflicting with a clear and
unambiguous provision of the Immigration and Nationality Act. The Act provides
that an immigration judge must conduct all proceedings for deciding the
inadmissibility or deportability of an alien. The Ninth Circuit disagreed with a
contrary First Circuit decision.
Morales-Izquierdo v.
Ashcroft
Requiring those
insanity acquittees who have committed serious crimes to prove their entitlement
to release in civil commitment proceedings by the heightened standard of clear
and convincing evidence does not violate due process. The government has strong
interest in protecting society from persons who pose a danger to others because
of mental disease, and the consequences of erroneous release are potentially
serious. The risk of erroneous deprivation of the liberty interest in freedom is
lessened with respect to insanity acquittees, because of the very nature of an
insanity acquittal and by the periodic evaluative hearings that are mandated by
statute. This was an issue of first impression.
U.S. v. Weed
The settlement
agreement signed by an attorney and her former partner regarding the division of
lucrative contingent-fee cases was not void on the ground that it violated the
provision of the code of professional responsibility governing division of fees
among lawyers. The agreement at issue was a separation agreement and not a
referral fee. Since the agreement was signed during the overall process of the
attorney's separation from the firm, there was nothing unethical about the
parties' agreement. Additionally, the plain text of the rule permitted a
division of fees without client consent and strict proportionality when the
division occurred between partners or was part of a separation agreement.
Walker v. Gribble
Deliberately
incarcerating a person beyond his or her mandatory release (MR) date violates
the Eighth Amendment's prohibition against cruel and unusual punishment. A
former prison inmate, who was incarcerated for 377 days beyond his MR date,
sufficiently alleged a § 1983 claim against Department of Corrections (DOC)
employees for violation of the Eighth Amendment. The former inmate alleged that
the DOC employees refused to release him when he reached his MR date, and
instead moved him to a minimum security prison, that the employees continued to
refuse to release him to parole even after two administrative appeal decisions
rejecting their attempts to justify reincarcerating him by revoking his
nonexistent parole, and that the employees did not release him until ordered to
do so by the circuit court in a habeas corpus proceeding.
Allen v. Guerrero
A defendant waived
his claim on direct appeal that his re-indictment for possession of a weapon in
a penal facility that had previously been dismissed, after the defendant
obtained a favorable judgment in his federal civil rights suit, was the result
of prosecutorial vindictiveness, and therefore, the Texarkana Court of Appeals'
reversal of the defendant's conviction and the dismissal of the case based on
the defendant's claim of prosecutorial vindictiveness was improper. The
defendant's pretrial motion to quash the re-indictment did not assert a claim of
either presumed or actual prosecutorial vindictiveness. To the extent that the
defendant's assertion challenging the timing of the re-indictment raised a claim
of vindictiveness, the claim was not raised until sentencing, and only for the
purpose of mitigating the defendant's sentence. The defendant never explicitly
asserted vindictive prosecution, he presented no evidence to the trial court to
support his claim, and the trial court never ruled on his claim.
Neal v. State
News
Recently, the
European Union has threatened to impose sanctions on a number of US imports,
unless Washington did anything to repeal its anti-dumping law. Further, trade tariffs could be
imposed next year, if the Byrd Amendment is not repealed. This amendment law
allows fines paid by firms who dump goods, to be given to the companies that
made the complaint. But in 2002, the World Trade Organisation had ruled that the
amendment was illegal. EU, Japan, Canada, Brazil, India, Mexico, Chile and South
Korea had argued that Byrd Amendment gave US companies an incentive to complain
and was therefore against WTO anti-dumping agreements. Further, the EU has
presented the WTO with a list of products that could be hit with extra duties
– which includes, textiles, sweet corn and heavy machinery.
The Food and Drug
Administration and three pharmaceutical companies have recently announced to
begin with an initiative to combat drug counterfeiting and fraud by putting
radio frequency identification technology on the labels of drug bottles. Amongst
the first drugs to get tagged will be Viagra, because it is one of the most
recognizable and counterfeited drugs in the United States, and OxyContin, which
is a controlled painkiller that has been subject to abuse as well as theft and
diversion. RFID would incorporate the use of small radio frequency tags on
product packaging that can be electronically scanned to authenticate and track
products as they move through the supply chain. In addition, Pfizer has also
reiterated that it plans to put RFID tags on all bottles of Viagra intended for
sale in the United States by the end of next year.
The World Trade
Organization has entered an interim verdict against an EU effort to prevent food
manufacturers from using European regional names - such as Champagne and Parma -
to market copycat versions of more than 600 wines, cheeses, meats, and other
food products that originated in Europe. Unlike trademarks, EU designations
indefinitely protect food and drink names associated with a region of origin.
The WTO ruling is not an absolute loss for the EU as both US and EU can comment on the decision within the next few months. Further, either side
is free to appeal against the said decision.
The Newcastle
University, UK has recently been awarded the first license permitting use of
human cloning technique to scientists looking into new treatments for conditions
like diabetes. But, the opponents of human therapeutic cloning are all set to
challenge this grant. Such applications for such licences are usually considered
by the Human Fertilisation and Embryology Authority. But critics such as the
Pro-Life Alliance say this licence does not fulfill legal criteria in the HFEA
Act. Solicitors for the Lawyers' Christian Fellowship have served an application
for a judicial review on the HFEA. The application will be scrutinized in the
High Court.
Recently, the
American Express Company has filed a lawsuit in the U.S. District Court in
Manhattan, against MasterCard, Visa, and eight major banks, seeking monetary
damages for the business lost as a result of the illegal, anti-competitive
practices of the card associations. The said suit does not specify an amount of
monetary compensation, but American Express is expected to seek damages that
could total to some billions of dollars. The Federal Court has already held
that Visa and MasterCard broke the law. In addition, they also held that Visa,
MasterCard and their member banks had restricted competition for years. They blocked
the development of a new generation of products that would have provided
consumers with greater value, convenience and choice. Now, as part of this
ruling, U.S. banks will be able to develop and offer card products that will be
processed on any of the competing merchant networks.
The first divorce in
Chilean history has recently been granted as the country's new marital code came
into effect, replacing the code that had been in force since 1884. Until the
passing of Law No. 19947, Chile was one of the countries of the world, not
allowing divorce; which is now permitted in cases of breach of marital duties,
such as infidelity or domestic violence, or after a period of separation whose
length depends on whether one party or both wish to end the marriage. Sixty days
of marital counseling is also required. Chilean legislators first proposed a law
to allow divorce in 1914.
According to United
Nations, the Kyoto Protocol on fighting climatic changes shall soon become a
legally binding treaty with effect from 16 February 2005. The protocol commits
55 industrialized nations to making significant cuts in the emission of gases
such as carbon dioxide, by the year 2012. Mr. Kofi Annan has described Russia’s
accession to the Kyoto Protocol as a “historic step forward in the world's
efforts to combat a truly global threat”. He further added that this formal
ratification of the protocol has ended years of uncertainty over the future of
the agreement.
According to
sources, ice at the world’s highest mountain, Mt. Everest is melting away and
therefore, that day is not far when this mountain would be nothing but a piece of rock. Further
one of the climatologists from Oxford University, working on the Himalayas, has
also said that “Over the last 30 years, in the Eastern Himalayas, snow cover
and ice cover have decreased on average by about 30%; so there's 30% less ice
and snow than there was 30 years ago." Governments, who are members of
UNESCO, are legally bound to protect World Heritage Sites from damage. As part
of the same, a delegation of environmental lawyers is all set to start a new
initiative in an action against global warming. According to these lawyers,
certain sites that are threatened by climate change can only be protected by
reducing emissions of greenhouse gases.
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