JURIST - Paper Chase: Saturday, July 24, 2010

[JURIST] A judge for the US District Court for the District of Arizona [official website] on Friday granted a preliminary injunction [opinion text] against an amendment to an Arizona law [ARS § 38-651 text] regarding health benefits for the families of state employees. The amendment, added as subsection O, would remove language from the law allowing interdependent domestic partners to receive health benefits by changing the definition of "dependent" to include only married couples and their children, effective October 1, 2010. The state employees argue that the amendment violates their rights to equal protection and substantive due process and that the amendment has no rational relationship to a legitimate state interest. In his order, Judge John Sedwick granted the preliminary injunction, finding that the plaintiffs met their burden of showing that their case would be likely to succeed on the merits and that they would suffer irreparable harm without the injunction. He also found the state's arguments that the amendment served the state interest of cost savings and administrative efficiency to be "speculative at best and discriminatory at worst." Lambda Legal [official website], the organization representing the state workers, praised the judge's decision [press release]:

This injunction removes the sword that's been hanging over the heads of hundreds of state workers and their families. We're pleased Judge Sedwick has recognized that this is a matter of equal pay for equal work, and that eliminating benefits for Arizona's gay and lesbian state employees would hurt real families.

The order also denied the state's motion to dismiss the workers' equal protection claim and Arizona Governor Jan Brewer's claim of immunity. The order granted the state's motion to dismiss the workers' substantive due process claim. The injunction is set to go into effect within 10 days.

Arizona is also facing a federal lawsuit regarding its controversial new immigration law. The US Department of Justice [official website] filed suit earlier this month [JURIST report] arguing that the law violates the Supremacy Clause [text] of the US Constitution. The law criminalizes illegal immigration and allows police officers to question individuals based on "reasonable suspicion" that they are in the country illegally. The law is already being contested in a class-action lawsuit [JURIST report] led by the American Civil Liberties Union [advocacy website]. Brewer signed the legislation into law in April and the law is set to go into effect on July 29.

[JURIST] The Amsterdam District Court on Friday fined [press release and decisions, in Dutch] oil trading company Trafigura [corporate website] 1 million euros (USD $1.28 million) for shipping hazardous waste to the Netherlands and illegally exporting the waste to the Ivory Coast in 2006. The company chartered a ship, the Probo Koala, to deliver and unload acidic and corrosive fuel refining waste in the Netherlands, but had it pumped back onto the ship due to processing costs. The company then agreed to pay an Ivory Coast contractor to dispose of the waste in 17 sites in the city of Abidjan. Prosecutors alleged the waste was responsible for widespread illness in Abidjan, including 15 deaths. The company was acquitted of forgery charges for concealing the nature of the chemical waste before the ship arrived in the Netherlands. Laywers for the company believe Judge Frans Bauduin applied the incorrect treaty [AP report] in finding that exporting the waste to Ivory Coast was illegal, arguing that the Marine Pollution Treaty [MARPOL 73/78 text] applied, under which such exportation was legal. Trafigura issued a statement [press release] regarding the judgment on its website:

While Trafigura is pleased to have been acquitted of the charge of forgery it is disappointed by the judges' ruling on the other two [charges], which it believes to be incorrect. The court has decided that different technical legislation is applicable than that claimed by Tranfigura in its defence. Concerning the delivery of dangerous goods, it is important that the court has noted that there was limited risk to human health from these slops, and indeed no damage occurred in Amsterdam. Trafigura will study the court's findings carefully with a view to appeal.

Trafigura paid 152 million euros (USD $196.4 million) to Ivory Coast in 2007 to assist with clean-up efforts and settled a civil suit filed in the UK last year by agreeing to compensate 30,000 Abidjan residents made ill by the waste a total of $1,500 each. The Amsterdam court also found the captain of the Probo Koala guilty of co-delivering the hazardous waste and forgery related to concealing its nature. He was sentenced to a five-month suspended prison term. Trafigura employee Naeem Ahmed was also found guilty of leading the harmful delivery and was sentenced to a 6-month suspended sentence and a fine of 25,000 euros (USD $32,300). Both the city of Amsterdam and Amsterdam Port Services were discharged from prosecution in the matter.

Trafigura is the latest oil company to be under fire for questionable business dealings in Africa. Last month, Sweden's international prosecutor announced an investigation [JURIST report] into Lundin Petroleum [company website] for crimes against humanity committed in Sudan from 1997 to 2003. The prosecutor will investigate allegations that Sudanese troops attacked and displaced civilians so that Lundin could have access to the land for drilling, which exacerbated violence in the area and led to displacement and killing of civilians.

[JURIST] A Honduran judge on Friday dropped two abuse of power charges against ousted leader Manuel Zelaya [BBC profile; JURIST news archive]. Judge Humberto Palacios dismissed the charges [AP report] because of the amnesty [JURIST report] granted to those involved in Zelaya's removal by the Honduran congress in January. Zelaya still faces other charges including fraud, usurping other institutions' authority and falsifying documents. Honduras remains split over the events of June 28, 2009, when Zelaya was forced into exile. Many still support Zelaya and believe him to be the legitimate leader of the country. The Popular National Resistance Front (FNRP), which supports Zelaya's return to power, is seeking to be recognized [Hondurasweekly report] as an official political party within Honduras and has grown under the banner of creating an assembly to review and rewrite the country's constitution.

Last month, Amnesty International (AI) [advocacy website] accused the Honduran government of failing to address human rights violations [JURIST report] stemming from the June 2009 coup. AI contends that hundreds of people opposed to the coup have been beaten and detained. The group cited evidence that judges critical of the coup have "suffered a series of arbitrary transferrals and unfair disciplinary proceedings" as well as threats and intimidation. The interim government has been attempting to restore Honduras's reputation internationally. In May, the International Court of Justice (ICJ) [official website] announced that Honduras dropped proceedings against Brazil [JURIST report] brought by the Honduran interim government last October in response to the sheltering of Zelaya.

[JURIST] A wireless communications industry group filed a lawsuit [complaint, PDF] Friday challenging a San Francisco ordinance requiring disclosure of cellular phone radiation emission levels. The complaint, filed by CTIA [official website] in the US District Court for the Northern District of California [official website], argues that the ordinance unlawfully interferes with the exclusive authority of the Federal Communications Commission (FCC) [official website] to regulate radio frequency (RF) emissions from mobile devices like cell phones. The complaint claims that the ordinance is preempted based on the Supremacy Clause for three basic reasons: first, it interferes with the federal government's authority to set standards for RF emissions; second, it disrupts Congress' ability to set uniform nationwide standards for "safe" cell phones; and third, it is expressly preempted by Section 332(c)(3)(A) of the Communications Act [text], which prohibits state imposed limits on "entry" into the wireless market through things like labeling requirements. CTIA argues [press release] that the FCC set Standard Absorption Rate (SAR) limits for RF emissions and that all cell phones sold legally in the US are "safe":

The problem with the San Francisco ordinance is not the disclosure of wireless phone SAR values - that information is already publicly available. Consumers can learn a device's SAR value from a number of public sources, and the value is often included in user manuals and listed on the websites of manufacturers and the FCC. CTIA's objection to the ordinance is that displaying a phone's SAR value at the point-of-sale suggests to the consumer that there is a meaningful safety distinction between FCC-compliant devices with different SAR levels.

Supporters of the ordinance claim that it will make consumers more informed when purchasing a cell phone.

Last month, the San Francisco Board of Supervisors [official website] voted 10-1 to approve [JURIST report] the ordinance, which is expected to take effect early next year. The safety of cell phone radiation levels has been a topic of debate, and, while San Francisco is the first to pass legislation on the issue, similar legislation has been considered by Maine and California [materials]. Recently, more legislative concern has been focused on the danger of texting while driving. Earlier this year, UN Secretary General Ban Ki-moon [official website] called for a global ban on cell phone use [JURIST report] while driving. In October, Ontario enacted a law banning the use of handheld devices [JURIST report] while driving, joining other jurisdictions in Canada and the US to pass similar bans including Quebec, Nova Scotia, Newfoundland, Labrador, California and New York.