[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in two cases. In the combined cases of Mac's Shell Service, Inc. v. Shell Oil Products Co. [oral arguments transcript, PDF; JURIST report] and Shell Oil Products Co. v. Mac's Shell Service, Inc., the Court heard arguments on whether a service station operator can bring a constructive termination action under the Petroleum Marketing Practices Act [15 USC § 2801-2806 text] when the operator continues to run the franchise with the same trademark, fuel, and premises. Additionally, the Court will decide on the requirements for constructive non-renewal of a franchise-franchisee agreement under the act. The US Court of Appeals for the First Circuit affirmed [opinion, PDF] a district court ruling that a franchise may recover for constructive termination even if it continues to use the same trademark, fuel, and premises. The First Circuit additionally reversed the district ruling on constructive non-renewal of an agreement, holding that a franchisee faced with an unlawful lease has to either sign the lease and forgo any potential actions under the act or refuse to sign and bring a challenge to it after receiving a notice of non-renewal. Counsel for Shell Oil argued:

Because the term "terminate," at the very least, requires an end, we and the United States agree that the First Circuit erred in upholding the so-called constructive termination, where the dealers continued to receive each element of the statutory franchise - that is the premises, the trademark, and fuel -

In this case the jury determined that Shell and Motiva engaged in conduct designed - prohibited by the PMPA when they raised rent to force dealers out of business and convert their stations to direct operations. Nevertheless, Shell and Motiva argue that conduct designed to force the dealers out of business is insufficient to invoke statutory protection because the dealers were not deprived of any of the statutory elements of the franchise and they remained in business for some period following the rental increase.

If accepted, the practical effect of Shell and Motiva's position will allow franchisors to circumvent the PMPA and terminate franchises at any time, at any reason, by simply increasing the burden on their operations.

that allowing the tort action as, Granite Rock is urging, would work a big change in the structure that Congress has established by which it has decided that major issues of labor law, such as the weapons - economic weapons that parties can use, should be decided by Congress through statute and by the National Labor Relations Board through the application of the statute.

[JURIST] The FBI illegally collected more than 2,000 telephone records between 2002 and 2006 by claiming the phone calls being made related to possible terrorism emergencies, according to a Washington Post report [text] Tuesday. According to the article, the Department of Justice (DOJ) Office of the Inspector General (OIG) [official website] will soon release a report that is expected to build on an OIG report issued in 2007, which showed the FBI had improperly obtained phone records. The FBI released a statement [text] responding to the article saying the practice was discontinued in 2006, and:

the Bureau did not have in place adequate internal controls to ensure that the appropriate process was used and that appropriate records were kept to document the basis of any request to the phone companies that did not require legal process. Steps were taken as early as 2006 to ensure similar situations do not occur in the future.

[JURIST] Slovakia's Foreign Ministry [official website, in Slovak] announced Tuesday that the government will accept three inmates from the Guantanamo Bay [JURIST news archive] detention facility. The ministry stated that this was a "gesture of solidarity" in support of President Barack Obama's foreign policy. The US Embassy in Slovakia [official website] released a statement stating:

The United States welcomes the announcement today by Slovak officials that the Government of Slovakia will accept 3 Guantanamo detainees for resettlement. The United States appreciates this act as a productive step in realizing President Obama's vision of closing the Guantanamo Bay detention center once and for all. We have had fruitful cooperation with Slovak authorities on this issue and will continue to collaborate as called for by our Slovak allies.

[JURIST] An appeals court in Malaysia ruled on Tuesday that the country's ban on sodomy is constitutional. The court made the ruling [AFP report] while considering the appeal of Abdul Rahim Abdul Rahaman, who was convicted of sodomizing a 14-year-old boy and sentenced to 60 years imprisonment. Abdul Rahim claimed the intercourse with the boy was consensual, but the court said that was irrelevant, rejecting arguments that the ban violates the Malaysian Constitution [text, PDF], which prohibits discrimination.

This ruling could have implications for the trial of Malaysian opposition leader Anwar Ibrahim [official website; JURIST news archives], who is accused of sodomizing his former aide, Mohd Saiful Bukhari, in 2008. Anwar has pleaded not guilty [JURIST report] and contends that the charge is part of a government conspiracy to undermine his political agenda. Anwar's counsel sought unsuccessfully [JURIST report] to have the case thrown out last month. This is the second sodomy charge against Anwar in the past 11 years. Anwar was Malaysia's deputy prime minister until he was fired in 1998 following sodomy charges of which he was initially convicted but later acquitted. He only recently reentered Malaysian politics following the expiration of a ten-year ban [JURIST report] against him for unrelated corruption charges. The trial date [Bernama report] for this second charge of sodomy against Anwar has been set for January 25. If convicted, Anwar faces up to 20 years in prison.

[JURIST] The UK Iraq Inquiry [official website] released a 2002 letter [text, PDF] on Tuesday from former UK attorney general Peter Goldsmith [professional profile] to former secretary of defense Geoffrey Hoon [personal profile] in which Goldsmith warned the Cabinet that the Iraq invasion was not supported by international law. The letter stated that Goldsmith was having "considerable difficulty" supporting a legal foundation for the Iraq invasion:

As you are aware, the Law Officers' opinion has not been sought on the legality of possible action and I have not therefore offered any views on the legal position. The clarity of your statement and the apparently authoritative way it was produced puts me however in a difficult position. I see considerable difficulties in being satisfied that military action would be justified on the basis of self defence. In particular I am not aware of the existence of material indicating the existence of an imminent threat from Iraq of the sort which would justify military action without support of a Security Council ... authorisation.

[JURIST] Former vice president of China's Supreme People's Court (SPC) [official website, in Chinese] Huang Songyou was convicted on bribery and embezzlement charges on Tuesday and sentenced to life imprisonment [Xinhua report]. Huang is the highest-ranking judge to be charged with corruption [China Daily report] since the founding of the People's Republic of China. Between 2005 and 2008, Huang allegedly embezzled 3.9 million yuan (about $574,000 USD) while serving as vice president of the SPC, and he allegedly embezzled 1.2 million yuan (about $175,000 USD) while serving as president of the Intermediate People's Court of Zhanjiang in 1997.

In August, the Communist Party of China (CPC) revoked [JURIST report] Huang's membership, following the corruption investigation. Huang was removed [JURIST report] from his position as vice president of the SPC in October 2008 by a vote of the legislators. In March, the SPC pledged to take steps to eliminate judicial corruption [JURIST report] with improved ethics education.

[JURIST] Former New Jersey governor Jon Corzine signed the "Compassionate Use of Medical Marijuana" bill [text, PDF] on his last full day in office Monday, legalizing the use of medical marijuana [JURIST news archive] in the state. The bill allows doctors to prescribe marijuana [NYT report] to patients with chronic illnesses such as cancer, AIDS, Lou Gehrig's disease, muscular dystrophy, and multiple sclerosis, which will be distributed through state-monitored dispensaries. Backers of the legislation have described [UPI report] the bill as the toughest medical marijuana law passed in the US. The measure limits use of medical marijuana to specific types of chronic illness and forbids users to grown their own marijuana or use it in public. The New Jersey legislature passed the bill [JURIST report] last week, and Corzine signed the bill as one of his last acts as governor. Republican Chris Christie [official website] was sworn in as New Jersey's governor on Tuesday.

This legislation makes New Jersey the fourteenth US state to legalize medical marijuana. In November, voters in Maine approved [JURIST report] an expansion [proposed legislation, PDF] of the state's existing medical marijuana laws, making Maine became the fifth state to allow dispensaries [ABC News report], following California, Colorado, Rhode Island, and New Mexico. In October, US Attorney General Eric Holder issued guidelines for a new policy [JURIST report] for investigating and prosecuting state-sanctioned medical marijuana use. Those guidelines reflect a pledge made by Holder in March to stop federal raids [JURIST report] on medical marijuana dispensaries that comply with state laws. Ending such raids was one of President Barack Obama's campaign promises [Boston Globe report], a view that differed sharply from the policy of the Bush administration.

[JURIST] The British Government announced [press release] Monday plans for a new scheme to compensate victims of terrorist attacks abroad. Home Secretary Alan Johnson [official profile] introduced the Victims of Overseas Terrorism Compensation Scheme [text, PDF] as part of the Crime and Security Bill [materials] that is currently before Parliament. The scheme will be limited to British nationals who sustain any injury from an act of terrorism occurring outside the United Kingdom after January 1, 2002. Justice Secretary Jack Straw [official profile] said:

Terrorism is intended as a political statement and an attack on society as a whole. Therefore it is right that, as a tangible expression of sympathy, society should compensate the victims of terrorist attacks abroad in recognition of the injuries suffered… Although we will never be able to compensate fully the trauma victims of terrorism experience, we hope the new scheme will provide some much needed relief and recognition that victims and their loved ones go through.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday issued two per curiam opinions [order list, PDF], remanded the case of Mumia Abu-Jamal [JURIST news archive], and denied a preliminary injunction to Michigan in a dispute over Asian carp. The Court granted certiorari in Beard v. Abu-Jamal [docket] and granted the respondent's motion to proceed in forma pauperis. The Court vacated the judgment below and remanded the case to the US Court of Appeals for the Third Circuit for further consideration in light of the Court's decision in Smith v. Spisak [opinion, PDF; JURIST report]. The only issue is whether the Third Circuit erred in allowing a new sentencing hearing [JURIST report] solely on the issue of life imprisonment or a death sentence. The Court declined to review [JURIST report] Abu-Jamal's conviction in April. Abu-Jamal was convicted of killing police officer Daniel Faulkner [advocacy website] after Faulkner pulled over Abu-Jamal's brother for a traffic violation. The case has become a focal point for death penalty opponents, attracting the attention of artists, civil rights activists, and politicians.

In Presley v. Georgia [opinion, PDF], the Court ruled that a defendant's Sixth and Fourteenth Amendment [texts] right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Court granted the petition for certiorari and petitioner's motion for leave to proceed in forma pauperis and reversed the judgment of the Supreme Court of Georgia. Justice Clarence Thomas filed a dissenting opinion, joined by Justice Antonin Scalia.

In the capital case of Wellons v. Hall [opinion, PDF], the Court granted the petition for certiorari and petitioner's motion for leave to proceed in forma pauperis, vacated the decision below, and remanded the case to the US Court of Appeals for the Eleventh Circuit for further consideration in light of the Court's decision in Cone v. Bell [opinion, PDF; JURIST report]. The Court ruled in Cone that a federal habeas court has the power to recognize that a state court erred in holding that state law precludes reviewing a claim and that a federal habeas claim is not "procedurally defaulted" because it has been presented twice to the state court. Scalia filed a dissenting opinion, joined by Thomas. Justice Samuel Alito filed a separate dissent, joined by Chief Justice John Roberts.

In Michigan v. Illinois [JURIST report], the Court denied an injunction sought by Michigan to compel Illinois to close two waterways that allow invasive Asian carp to reach the Great Lakes. The Court issued the order without comment. The Court must still determine whether to reopen a longstanding controversy over the diversion canal, created in the 1890s to keep Chicago's sewage from flowing into Lake Michigan.

Finally, the Supreme Court declined to review an order requiring the state of California to release more than 40,000 inmates from its state prisons to ease overcrowding. The Court dismissed the appeals in Schwarzenegger v. Plata and California State Republican Legislator Intervenors v. Plata [dockets] for lack of jurisdiction but noted "that a further order has been entered in this case, but that order is not the subject of these appeals. It is also noted that the district court has stayed its further order pending review by this Court." Last week, a panel of federal judges approved [JURIST report] a new prison reduction plan, but stayed the order pending Supreme Court action.

[JURIST] The US Department of Homeland Security (DHS) [official website] announced on Monday that the US will allow Haitian orphans into the country [press release] to receive needed care in the aftermath of last week's earthquake [JURIST news archive]. The humanitarian parole policy [USCIS backgrounder], which grants individuals temporary admission to the US in emergency cases, will apply to certain groups of Haitian orphans [fact sheet], including those in the process of being adopted by Americans. US Secretary of Homeland Security Janet Napolitano [official profile] described the policy:

We are committed to doing everything we can to help reunite families in Haiti during this very difficult time. While we remain focused on family reunification in Haiti, authorizing the use of humanitarian parole for orphans who are eligible for adoption in the United States will allow them to receive the care they need here.

[JURIST] The Spanish High Court [official website, in Spanish] on Monday ordered the extradition of pilot Julio Alberto Poch so that he may be tried in Argentina for his alleged role in the nation's 1976-83 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. Poch was a navy officer at Argentina's Naval Mechanics School [backgrounder, in Spanish], one of the most notorious detention centers of the military dictatorship, and is believed to have piloted flights, known as "death flights," which were used to dump the military junta's political opponents into the Plata river and the Atlantic Ocean. Poch holds dual Dutch and Argentine citizenship, which had protected him from earlier attempts at extradition [ABC report, Spanish], but he was arrested and imprisoned last September when he landed in Valencia while en route to the Netherlands. The Spanish court found that there are adequate measures in place to guarantee that Poch will receive a fair trial [BBC report] in Argentina. Poch continues to deny the charges against him but has accepted extradition.

Last month, an Argentine court sentenced [JURIST report] former judge Victor Brusa to 21 years in prison for crimes against humanity during the country's Dirty War. The Federal Court of Santa Fe found Brusa guilty of eight counts of crimes against humanity in his capacity as a judicial officer during the dictatorship. The court also sentenced five former police officers to between 19 and 23 years in prison for their roles in kidnapping and torture. Brusa was arrested in 2005 after Argentina's Supreme Court struck down amnesty laws [JURIST report] adopted in the 1980s to deter military insurrection against the democratic government, prompting the government to reopen hundreds of human rights cases. During the Dirty War, an estimated 20,000 to 30,000 people were forcibly kidnapped or "disappeared" in a government-sponsored campaign against suspected dissidents.