[JURIST] A group of American citizens from Texas' Rio Grande Valley filed suit [complaint, PDF] against the US Department of State (DOS) [official website; JURIST news archive] Tuesday, alleging they had been denied passports because they are of Mexican descent and were delivered by midwives. According to a complaint filed [ACLU press release] in the US District Court for the Southern District of Texas [official website], the DOS effectively denies passport applications by "demand[ing] that these passport applicants furnish a litany of additional documents to substantiate their citizenship and qualification for a passport" and later arbitrarily deeming the applications abandoned despite proof of citizenship. Robin Goldfaden, an attorney for the ACLU Immigrants' Rights Project [advocacy website], commented:

Based on blanket race-based suspicion, the State Department is sending this select group of passport applicants on a veritable scavenger hunt and then refusing to issue them passports without a fair examination of their individual cases.

[JURIST] US government secrecy continued to increase in 2007, according to the Secrecy Report Card 2008 [text, PDF; press release, PDF] released Tuesday by OpenTheGovernment.org [advocacy website]. The report chastized the Bush administration for its refusal "to be held accountable to the public through the oversight responsibilities of Congress," and took note of extensive quantitative findings:

The government spent $195 maintaining the secrets already on the books for every one dollar the government spent declassifying documents in 2007, a 5% increase in one year. At the same time, fewer pages were declassified than in 2006 [...]
Almost 22 million [Freedom of Information Act] requests were received in 2007, an increase of almost 2% over last year. The 25 departments and agencies that handle the bulk of the third-party information requests, however, received 63,000 fewer requests than 2006 — but processed only 2,100 more [...]
Invoked only 6 times between 1953 and 1976, the [state secrets] privilege has been used a reported 45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years.

[JURIST] A Fulton County Superior Court [official website] judge on Monday granted summary judgment for the state of Georgia in a suit alleging that the state's electronic voting system is unconstitutional and illegally vulnerable to fraud. The challenge, filed in 2006 by a coalition of Georgia voters called Voter GA [advocacy website], alleged that the system's lack of paper documentation compromises accuracy and fraud detection, providing no way to perform a recount. The group asserted that the system violates voters' due process rights because fraudulent manipulation cannot be detected, and violates equal protection rights by creating a disparity where absentee voters use ballots that can be verified, audited and recounted. The state maintained that the electronic system is more secure than older voting systems. Lawyers for Voter GA said they will appeal the decision. Also Monday, US Attorney General Michael B. Mukasey [official website; JURIST news archive] and senior Department of Justice officials met with rights groups and state and local officials to discuss ballot protection efforts [DOJ press release] for the upcoming national elections on November 4. Mukasey, who has made election monitoring a priority [JURIST report; DOJ fact sheet] for the end of his term, said that to achieve voter confidence, the DOJ must "[communicate] openly with groups interested in the protection of voting rights and with the state and local officials primarily responsible for administering our elections." AP has more.

Similar challenges in Maryland, New Jersey, and Florida [JURIST reports] to the legality of paper-free voting systems have been unsuccessful. The reliability of electronic voting machines drew national attention as the source of delays [JURIST report] in a number of states during the November 2006 elections. Errors with touch-screen-only systems were the basis for several lawsuits filed in Florida regarding vote-tallying irregularities [JURIST report], with a coalition of advocacy groups claiming that officials in Sarasota County failed to investigate or report various alleged malfunctions with the touch-screen voting machines. In December 2006, a draft report [PDF text; JURIST report] from the US National Institute of Standards and Technology (NIST) [official website] and the Election Assistance Commission (EAC) [official website] concluded that software-dependent electronic voting machines "are not viable for future voting systems" and "in practical terms cannot be made secure." That report endorsed so-called software-independent systems, which do not rely on software alone for vote-tallying and often have a paper back-up system.

[JURIST] Human Rights Watch (HRW) [advocacy website] released a report [text; press release] Wednesday calling on Iran, Saudi Arabia, Sudan, Pakistan, and Yemen to join in a global moratorium on the death penalty [JURIST news archive] for juveniles. The report states that the five countries are the last in the world known to engage in the practice, with a combined 32 executions of juvenile offenders since 2005. HRW said that Saudia Arabia and Iran, which alone has carried out 26 of those 32 juvenile executions, have not implemented legislation prohibiting the practice, while Sudan, Pakistan, and Yemen do not enforce their national bans. Noting that over 100 juvenile offenders are currently on death row or awaiting final verdicts within the five named countries, HRW recommended that

Governments in states that have yet to prohibit the juvenile death penalty for all crimes should
1. Enact as a matter of urgency legislation banning the imposition of capital punishment or life without parole on persons who were under 18 at the time of the crime, without exceptions;
2. Immediately implement a moratorium on all executions of persons convicted of crimes committed before age 18, pending passage of legislation banning the juvenile death penalty;
3. Review all existing death sentences passed on persons who were under 18 at the time of the crime, and immediately commute those sentences to custodial or other sentences in conformity with international juvenile justice standards.

[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Monday reversed [opinion, PDF] a district court's grant of summary judgment and dismissal to Michigan's Region VII Area Agency on Aging (Region VII) [official website], instead ruling that an unlawful termination suit filed by former employee Denise Hughes can continue. Hughes argues that the agency fired her because of statements she made to a local newspaper regarding sexual harassment allegations made against the agency's executive director, in violation of the First Amendment [LII backgrounder]. Region VII had argued that, because it was not a government entity, it was immune from the suit brought under a statute targeting government action [42 U.S.C. §1983 text], and that Hughes' statements were not protected because they were not regarding issues of "public concern." The Sixth Circuit rejected those arguments, holding that even though the agency was a private non-profit, because of "pervasive entwinement of governmental entities and representatives in the supervision and management of Region VII" the agency was effectively acting as an arm of government and could be sued under the statute. The court also found that Hughes' statements to the reporter were protected because of the public interest in the governance of the agency:

The evidence in this case shows that a newspaper reporter specifically sought out Hughes as a source regarding allegations of sexual harassment against the executive director of Region VII, an area agency on aging that is responsible for distributing a substantial amount of funds entrusted to the agency by the State of Michigan and the federal government. Further, the reporter testified in his deposition that, while Hughes was still an employee of Region VII, the reporter confirmed to King, the executive director, that Hughes was serving as a source for the reporter’s critical articles regarding Region VII. In light of this evidence and the case law, we conclude that Hughes, in speaking to a reporter about allegations of sexual harassment against a public official, engaged in a constitutionally protected activity.

[JURIST] The US District Court for Connecticut [official website] has blocked enforcement of a new provision [text] of the US Bankruptcy Code against attorneys seeking to advise clients about taking on additional debt. District Judge Christopher Droney [official profile] issued a preliminary injunction Tuesday, ruling that the statute was so broad as to unconstitutionally restrict attorneys' First Amendment rights. The provision prohibits debt-relief agencies from advising clients "to incur more debt in contemplation of ... filing a case" under the Bankruptcy Code. AP quoted Droney as writing,

If the government seeks to prevent manipulation of the bankruptcy system, a more narrowly tailored approach would be to penalize those who take on certain types of debts.

[JURIST] A three-judge panel of the US Circuit Court of Appeals for the Third Circuit reinstated [opinion, PDF] a class-action lawsuit Tuesday against drug maker Merck & Co. [corporate website] over claims relating to its prescription painkiller Vioxx [JURIST news archive]. The lawsuit had been dismissed [JURIST report] by the US District Court of New Jersey in April 2007. In its ruling, the three-judge panel held by a 2-1 margin concluded that "the District Court acted prematurely in finding as a matter of law that Appellants were on inquiry notice of the alleged fraud before October 9, 2001." The panel reversed the dismissal, and remanded the case to the District Court. Merck indicated in a press release [text] that it is weighing whether to appeal the decision to the Third Circuit en banc or appeal directly to the Supreme Court. The Wall Street Journal has more.

In 2007, US District Court Judge Stanley Chester determined that the two-year limitations period on the action started to run in September 2001 with the release of a warning letter [text] from the Food and Drug Administration [official website], coupled with subsequent attention from financial analysts and members of the press. The first fraud complaint against the company was filed in November of 2003. Merck pulled Vioxx from the market in September 2004 after a study showed that it could double the risk of heart attack or stroke if taken for more than 18 months. The price of Merck stock jumped by almost 10% following news of the class action dismissal.

[JURIST] A three-judge panel for the US Court of Appeals for the Fifth Circuit on Tuesday vacated the conviction [opinion, PDF] of former Ku Klux Klan (KKK) [WARNING: readers may find this website offensive; JURIST news archive] member James Ford Seale for his involvement in the 1964 deaths of two 19-year-old black teens. Seale was sentenced to three life terms in August 2007, two months after his conviction [JURIST reports] in Mississippi federal court on two counts of kidnapping resulting in death and one count of conspiracy [18 U.S.C. 1201(a) and (c) text]. On appeal, the Fifth Circuit considered only whether a five-year statute of limitations for non-capital crimes [18 U.S.C. 3282 text] enacted in 1972 could retroactively apply to bar Seale's 2007 indictment for the 1964 killings. Endorsing the view that "statutory changes that are procedural or remedial in nature apply retroactively," the court held:

The district court erred by failing to recognize the presumption that changes affecting statutes of limitation apply retroactively, even without explicit direction from Congress. While we are mindful of the seriousness of the crimes at issue, we cannot abdicate our duty to faithfully apply a valid limitations period.

[JURIST] The US Court of Appeals for the Eighth Circuit [official website; JURIST news archive] on Monday rejected [opinion, PDF] claims that federal and state drug laws [relevant statutes] violate the constitutional and statutory rights of a priest in the Ethiopian Zion Coptic Church (EZCC) [official website], which embraces the sacramental use of marijuana. The St. Louis-based court affirmed a decision by the US District Court for the Southern District of Iowa [official website], which ruled that plaintiff Carl E. Olsen [personal website] did not state a claim under the First Amendment, the Fourteenth Amendment, the Religious Freedom Restoration Act (RFRA) or the Religious Land Use and Institutionalized Persons Act (RLUIPA) [texts]. Olsen sought a declaratory judgment that marijuana is not a controlled substance when used for religious purposes and an injunction prohibiting government officials from enforcing the US and Iowa anti-drug statutes [text] against him. The Eighth Circuit ruled that RFRA does not apply to state or local governments and that Olsen had already unsuccessfully litigated the RFRA issue as to the federal government. Noting that "there has not been a change in controlling law" since the prior cases, the court likewise held that Olsen had already litigated his free exercise and equal protection claims, and that he was not within the class protected by RLUIPA.

Olsen previously challenged drug laws in the First Circuit and the District of Columbia Circuit, among other jurisdictions [case materials]. Proponents of marijuana use for medical rather than spiritual purposes won a legal victory this July, when a California court ruled [JURIST report] that the state's medical marijuana program does not unconstitutionally interfere with federal drug laws. Last year, New Mexico joined about a dozen states that permit medical marijuana [JURIST report] when Governor Bill Richardson signed a bill legalizing the drug for the treatment of "eligible conditions and symptoms." The US Court of Appeals for the Ninth Circuit had ruled [JURIST report] that federal drug laws could be enforced against a terminally ill patient using marijuana with a doctor's recommendation.