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Legal news from Monday, June 11, 2007 |
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Supreme Court to hear sentencing guidelines, age discrimination cases
Gabriel Haboubi on June 11, 2007 4:15 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari Monday in three cases [order list, PDF] to be heard next term, two of which deal with federal sentencing guidelines. In Kimbrough v. US (06-6330) [docket] the court will decide an appeal of a Fourth Circuit case stemming from a district judge refusing to order a higher sentencing range because the defendant was dealing both crack and powder cocaine. The Fourth Circuit vacated Kimbrough's lesser sentence [opinion, PDF] and remanded for resentencing. AP has more on Kimbrough. In Gall v. US (06-7949) [docket], the court will deal with another circuit court order resentencing of a defendant who was sentenced below guidelines. The Eighth Circuit ruled that it was unreasonable for an drug dealer selling MDMA, or ecstasy, to be sentenced below the guideline amount [opinion, PDF] without any special circumstances in the case.
Finally in Sprint/United Management v. Mendelsohn (06-1221) [docket] the court will determine if testimony can be allowed in federal age discrimination cases from workers who suffered job bias but were not parties to the case. The Tenth Circuit ruled that Ellen Mendelsohn was deprived of a full opportunity [opinion, PDF] to present her Age Discrimination in Employment Act (ADEA) [29 USC 621-634 text] case to the jury when the trial court excluded evidence from other former Sprint employees. AP has more on Mendelsohn. SCOTUSblog has additional coverage.


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Georgia Supreme Court dismisses voter ID lawsuit for lack of standing
Gabriel Haboubi on June 11, 2007 3:05 PM ET

[JURIST] The Supreme Court of Georgia [official website] Monday dismissed a challenge to Georgia's voter ID law [text; JURIST news archive], finding that the plaintiff lacked standing to mount the challenge [opinion, PDF; summary (pg. 4), PDF], without addressing the law itself. The court said that the plaintiff, as a first time Georgia voter, was entitled to use a non-photo ID, such as a copy of a paycheck or utility bill, at the time of filing the case. The court rejected her attempt to amend her complaint when her status later changed, saying that because the original complaint had an incurable jurisdictional defect, "there is no viable document to amend." The court additionally noted that she did have a qualifying government photo ID regardless, in the form of a MARTA [official website] transit pass, and therefore could not be harmed by the voter ID law.
In September, State Superior Court Judge T. Jackson Bedford Jr. held that the controversial law was not required under the Georgia constitution [text, PDF] and would disenfranchise otherwise qualified voters [JURIST report], who generally have no use for a state-issued ID [GA Department of Driver Services information]. The law was passed by a Republican majority [JURIST report] in the Georgia legislature, who say it will fight voter fraud. Those against the law say it will likely have a negative impact on the turnout of poor, elderly and minority voters, who statistics show are less likely to have driver's licenses. A federal challenge [JURIST report] to the law is still pending. AP has more.


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Zimbabwe harming judicial independence, rule of law: rights group
Michael Sung on June 11, 2007 2:32 PM ET

[JURIST] The International Commission of Jurists (ICJ) [advocacy website] Monday accused [press release, PDF] the Zimbabwean government of "interfering with the proper functioning of the administration of justice, the role of lawyers and their independence," following a five-day mission in which the rights group found instances in which lawyers representing dissidents were repeatedly harassed, subjected to detention, or beaten by police. The ICJ also cited an incident in which a lawyer representing the Attorney-General of Zimbabwe [JURIST news archive] was physically assaulted by police as an example of the erosion to the rule of law, which the ICJ attributes to the government's failure to hold police responsible for "repeatedly and blatantly [ignoring] court orders."
In May, Zimbabwean police refused to comply with a High Court ruling [JURIST report] requiring police officials to vacate a farm seized by police in March, and responded by ordering more police on to the property. In March, opposition leader and presidential hopeful Morgan Tsvangirai [BBC profile; JURIST news archive] was arrested and beaten [JURIST reports] while under police custody. Police officials have routinely ignored court orders and critics have alleged that Zimbabwean President Robert Mugabe [BBC profile] has given tacit approval to their actions. South Africa's Mail & Guardian has more.


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Federal appeals court orders release of 'enemy combatant' from military custody
Gabriel Haboubi on June 11, 2007 1:36 PM ET

[JURIST] A US federal appeals court ruled [PDF text] Monday that the military cannot seize and imprison civilians lawfully residing in the United States and detain them as "enemy combatants." The US Court of Appeals for the Fourth Circuit [official website] rejected the government's contention that the president was authorized to order the military seizure of Illinois resident and Qatari native Ali Saleh Kahlah al-Marri [Brennan Center case materials] from civilian custody, and hold him indefinitely in a military jail without charge as an "enemy combatant" [JURIST news archive]. The court ruled that the Defense Department must release al-Marri from military custody within a reasonable amount of time, perhaps transferring him back to civilian authorities, or initiating deportation proceedings, just so long as military detention ceases.
The Justice Department argued that the federal courts lacked jurisdiction [JURIST report] over al-Marri's claims under the Military Commissions Act of 2006 [PDF text; JURIST news archive], but the Court rejected that argument: We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government's allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri's conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.
This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely. Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities, and indicted for alleged domestic crimes in 2001. In 2003, President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely. Al-Marri has claimed abuse [JURIST report] while being held in a US Navy bring in Charleston, South Carolina. Oral arguments were heard [JURIST report] in February. Reuters has more.
BREAKING NEWS: DOJ spokesman Dean Boyd announced that the Department of Justice will seek to have the Fourth Circuit Court of Appeals rehear the case en banc. AP has more.


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Powell urges immediate closure of Guantanamo detention facilities
Michael Sung on June 11, 2007 12:46 PM ET

[JURIST] Former US Secretary of State Colin Powell [official profile] said Sunday that he favors the immediate closure [transcript] of all detention facilities at Guantanamo Bay [JURIST news archive], adding that he would also "get rid" of the framework created by the Military Commissions Act of 2006 (MCA) [PDF text] and instead prosecute terrorist suspects under existing federal law or military courts. In an appearance on NBC's "Meet The Press," Powell also criticized the denial of habeas corpus rights.
Powell said: And if it was up to me, I would close Guantanamo not tomorrow, but this afternoon. I'd close it. And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system. The concern was, "Well, then they'll have access to lawyers, then they'll have access to writs of habeas corpus." So what? Let them. Isn't that what our system's all about? And, by the way, America, unfortunately, has two million people in jail all of whom had lawyers and access to writs of habeas corpus. And so we can handle bad people in our system. And so I would get rid of Guantanamo and I'd get rid of the military commission system and use established procedures in federal law or in the manual for courts-martial. I would do that because I think it's a more equitable way to do it and it's more understandable in constitutional terms. I would alwaysI would also do it because every morning I pick up a paper and some authoritarian figure, some person somewhere is using Guantanamo to hide their own misdeeds. And so, essentially, we have shaken the belief that the world had in America's justice system by keeping a place like Guantanamo open and creating things like the military commission. We don't need it, and it's causing us far damage than any good we get for it. But, remember what I started in this discussion saying, "Don't let any of them go." Put them into a different system, a system that is experienced, that knows how to handle people like this. Last Thursday, the Senate Judiciary Committee approved a measure cosponsored by Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) that restores habeas corpus rights to detainees [JURIST report]. In May, the US House of Representatives passed an amendment to a defense spending bill requiring the Pentagon to develop a Guantanamo shutdown plan [JURIST report]. AP has more.


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DOJ considered politics in immigration judge appointments : WP report
Michael Sung on June 11, 2007 11:39 AM ET

[JURIST] At least one-third of the 37 immigration judges appointed by the Justice Department since 2004 are highly-connected Republicans or Bush administration insiders and half of those appointed lacked prior experience in immigration law, the Washington Post reported Monday. Immigration judges, who sit alone on cases, annually deport approximately 250,000 people from the United States. The Washington Post's review of DOJ appointments indicate political ties have played an increasingly important role in the selection of immigration judges, but DOJ spokesperson Dean Boyd told the Washington Post that political considerations may not be used in the employment decisions of civil service employees. The allegations come amid an ongoing internal investigation [JURIST report] by the DOJ's Inspector General and Office of Professional Responsibility [official website] into whether department aides illegally made hiring decisions based on considerations of applicants' political activities and connections. Last month, former DOJ aide Monica Goodling [JURIST news archive] testified before the House Judiciary Committee that she considered applicants based upon their politics, a violation of federal law.
The immigration court system was criticized recently by a study [materials] published in the Stanford Law Review that found the courts were inconsistent in granting asylum to applicants [JURIST report]. The SLR study echoes another report [materials] conducted by Syracuse University, which found widespread complaints from lawyers, federal appeals court judges, and other immigration legal professionals concerning numerous instances of failures by immigration judges to provide a "fair, expeditious, and uniform application of the nation's immigration laws in all cases." The Washington Post has more.


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Lebanon panel nominating judges for Hariri tribunal
Michael Sung on June 11, 2007 11:04 AM ET

[JURIST] Lebanon's Supreme Judicial Council convened Monday to discuss the nomination of 12 Lebanese judges to be considered by UN Secretary-General Ban Ki-moon for appointment to the Special Tribunal for Lebanon [UN materials], established under UN Security Council Resolution 1757 [PDF text; JURIST report] to investigate and try suspects in the February 2005 assassination of former Prime Minister Rafik al-Hariri [JURIST news archive]. The tribunal will include four Lebanese judges, one of whom will serve in the trial chamber with two international judges, two in the appellate chamber with three international judges, and a single judge will be reserved as an alternate. Ban will select the four Lebanese judges from the list submitted by the Supreme Judicial Council, which is normally responsible for judicial appointments, disciplinary actions, and other personnel decisions. Other details surrounding the tribunal, including where the court will be located and where suspects will be detained, remain unresolved.
Lebanese National Assembly speaker Nabih Berri [official profile] has criticized [JURIST report] the Security Council's unilateral establishment of the Hariri tribunal as an infringement of Lebanese sovereignty and an impediment of the reconciliation process in Lebanon [JURIST news archive]. The resolution circumvented the Lebanese National Assembly at the request [JURIST report] of Lebanese Prime Minister Fouad Siniora [BBC profile] after Siniora said that "all possible means" to ratify a UN tribunal proposal [JURIST report] in the National Assembly had failed. The controversial proposal, also opposed [JURIST comment] by pro-Syrian Lebanese President Emile Lahoud [official profile], has been a source of major disagreement in Lebanon's deeply sectarian political arena. The Lebanese cabinet approved a draft plan [JURIST report] for the tribunal last November despite the resignation of all pro-Syrian cabinet members from the militant Hezbollah and Amal Movement [party website, in Arabic]. Reports from a UN commission probing Hariri's death have implicated Syrian officials in the assassination [JURIST report] and Syrian President Bashar al-Assad has said that Syria will reject [JURIST report] "any cooperation requested from Syria that compromises national sovereignty." From Lebanon, the Daily Star has more.


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Supreme Court rules federal tobacco regulation no basis for case removal
Jeannie Shawl on June 11, 2007 10:13 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] handed down decisions in five cases Monday, including Watson v. Philip Morris [Duke Law case backgrounder], where the Court held that a lawsuit against the tobacco company could not be removed from state to federal court solely based on an argument that the tobacco industry is regulated by the Federal Trade Commission. Philip Morris was sued in an Arkansas court for alleged violations of the Arkansas Deceptive Trade Practices Act, and the company sought to have the case heard in federal court instead. Both the federal district court and the US Court of Appeals for the Eighth Circuit allowed the removal [8th Circ. decision] under 28 USC 1442(a)(1) [text], which allows a defendant to remove a case to federal court when the lawsuit is based on actions taken under direction of a federal officer. The Supreme Court reversed, holding that "the fact that a federal regulatory agency directs, supervises, and monitors a company's activities in considerable detail" does not permit removal under the federal officer removal statute. Read the Court's unanimous opinion [text] per Justice Breyer.
In Long Island Care at Home v. Coke [Duke Law case backgrounder; JURIST report], the Court upheld a 30-year-old Department of Labor regulation [29 CFR 552.109(a) text] that eliminates overtime for home health care workers providing "companionship services" employed by outside agencies and not directly by families. The DOL regulation creates an exemption to the general requirement under the Fair Labor Standards Act (FLSA) [PDF text] that overtime workers be paid "time and a half" compensation. Evelyn Coke sued her former employer seeking compensation for more than 20 years of overtime, and the US Court of Appeals for the Second Circuit struck down the regulation [opinion, PDF] in 2004, finding it violated congressional intent for the FLSA to provide overtime compensation to employees. The Supreme Court reversed, saying the regulation is "valid and binding." Read the Court's unanimous opinion [text] per Justice Breyer.
In United States v. Atlantic Research Corp. [Duke Law case backgrounder], the Court held that a party potentially liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) [text] for cleaning up areas contaminated by hazardous materials may sue under Section 107(a) [42 USC 9607 text] of the Act for contribution from other parties. Atlantic voluntarily cleaned up contamination caused by the company's work retrofitting rocket motors for the US government and later sought to recover some of its costs from the government. The US Court of Appeals for the Eighth Circuit ruled [PDF text] that the company could pursue its lawsuit under Section 107(a), even if it was barred from bringing an action for contribution under Section 113(f) [42 USC 9613 text] of the law because the clean-up was not compelled by a CERCLA enforcement action. The Supreme Court affirmed the federal appeals court ruling. Read the Court's unanimous opinion [text] per Justice Thomas.
In Beck v. PACE International Union [Duke Law case backgrounder; JURIST report], the Court held that Crown Vantage, Inc., a pension plan sponsor, did not breach its fiduciary duties by failing to consider a termination plan advocated by PACE International Union when Crown filed for bankruptcy. PACE proposed that Crown terminate pension plans by merging them with PACE's multiemployer plan, but Crown's directors instead opted for a standard termination by purchasing annuities. The Supreme Court reversed the Ninth Circuit's decision [PDF text] in the case, ruling that Crown did not breach fiduciary duties under the Employee Retirement Income Security Act (ERISA) [text] by not considering PACE's merger proposal because "merger is not a permissible method of terminating a single-employer defined-benefit pension plan" under ERISA. Read the Court's unanimous opinion [text] per Justice Scalia.
Finally, in Fry v. Plilar [Duke Law case backgrounder; JURIST report], the Court held that a federal court must apply the "substantial and injurious effect" standard of Brecht v. Abrahamson [opinion] in a federal habeas proceeding when examining the prejudicial impact of constitutional error in a state court criminal trial. The Supreme Court affirmed the Ninth Circuit's decision [PDF text], ruling that federal courts must apply the Brecht standard whether or not a state appellate court recognized that there was a constitutional error and reviewed it under the "harmless beyond a reasonable doubt" standard found in Chapman v. California [opinion]. Read the Court's opinion [text] per Justice Scalia, along with a concurrence and dissent in part [text] from Justice Stevens and a second concurrence and dissent in part [text] from Justice Breyer.


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Zimbabwe proposes constitutional amendments
Michael Sung on June 11, 2007 7:53 AM ET

[JURIST] The Zimbabwean government has published proposed amendments to the Constitution of Zimbabwe [PDF text] that would allow the simultaneous election of the president and both houses of legislature, reforms that critics allege to be an attempt by Zimbabwean President Robert Mugabe [BBC profile] to weaken the opposition. The proposed amendments would end the existing assembly's term two years early in 2008, reduce the president's term from six years to five, and increase the number of legislators in the House of Assembly from 150 to 210 and the Senate from 66 to 84. In addition, the number of House of Assembly members appointed by the president would decrease from 30 to 10, but the number of senators appointed by the president would go from 16 to 34. The government also proposed Saturday the creation of a "Human Rights Commission," which will consist of 16 members appointed by Mugabe and the parliament, which Mugabe's party, the Zimbabwe African National Union Patriotic Front (ZANU-PF) currently controls.
Critics believe that the proposed amendments are the latest efforts by Mugabe to weaken the opposition amid rising discontent with the government. Mugabe, who implemented a controversial white-owned farm seizure program, has been blamed for causing a nation-wide famine and the inflation of over 976.4 percent [CIA backgrounder] as previously productive farms have become barren under inexperienced owners. In May, the Centre on Housing Rights and Evictions (COHRE) [advocacy website] urged [JURIST report] the International Criminal Court [official website] to prosecute Mugabe for his role in Operation Murambatsvina [UN report, PDF], a coordinated effort by the government to remove unlicensed sellers and non-zoned homes from the streets of Harare in 2005. AFP has more.


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