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Legal news from Wednesday, March 21, 2012




Utah approves 72 hour waiting period for abortions
Max Slater on March 21, 2012 12:23 PM ET

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[JURIST] Utah Governor Gary Herbert [official website] on Tuesday signed into law a bill [HB 461, text] that extends the waiting period for a woman seeking an abortion from 24 hours to 72 hours. The Utah waiting period law closely mirrors a South Dakota law passed last year [JURIST report] that imposes a 72-hour waiting period for women who wish to obtain an abortion. A federal judge blocked the South Dakota law [JURIST report] in July, saying that it imposed an undue burden on women. Though the Utah and South Dakota laws are similar in many respects, the Utah law allows the 72-hour waiting period to begin after the woman's initial consultation with any health professional [Reuters report], while the South Dakota law requires that the health professional be an abortion doctor. The Utah waiting period law is scheduled to take effect on May 7.

Many states have recently passed laws restricting abortions. On Monday, the Idaho State Senate approved a bill [JURIST report] requiring a woman who is seeking an abortion to first receive an ultrasound. Earlier this month, Virginia Governor Bob McDonnell [official website] signed a similar ultrasound bill into law [JURIST report]. In February, the US District Court for the Western District of Texas [official website] ruled [JURIST report] that Texas can enforce a state law requiring women to receive a sonogram before obtaining an abortion. In July, the North Carolina state legislature overrode a governor's veto [JURIST report] to pass a law requiring a 24-hour waiting period for a woman seeking an abortion.




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Supreme Court rules on state sovereign immunity under FMLA
Dan Taglioli on March 21, 2012 12:19 PM ET

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[JURIST] The US Supreme Court [official website] ruled 5-4 [opinion, PDF] Tuesday in Coleman v. Court of Appeals of Maryland [SCOTUSblog backgrounder] on the abrogation of states' Eleventh Amendment [Cornell LII backgrounder] sovereign immunity by the self-care leave provision of the Family and Medical Leave Act (FMLA) [DOL backgrounder]. Petitioner Daniel Coleman was terminated from his job and filed suit under Title VII and the FMLA seeking money damages, alleging that his employer, the Maryland Court of Appeals, violated the FMLA by denying him self-care leave. The FMLA's "self-care provision" entitles an employee to take up to 12 work weeks of unpaid leave per year for the employee's own serious health condition when the condition interferes with the employee's ability to perform at work. The FMLA also creates a private right of action for equitable relief and damages "against any employer (including a public agency) in any Federal or State court." In an opinion by Justice Anthony Kennedy, the court held:
[Lawsuits] against States under this provision are barred by the States' immunity as sovereigns in our federal system. ... To abrogate the States' immunity from suits for damages ... Congress must identify a pattern of constitutional violations and tailor a remedy congruent and proportional to the documented violations. It failed to do so when it allowed employees to sue States for violations of the FMLA's self-care provision.
The judgment affirmed a decision by the US Court of Appeals for the Fourth Circuit, which had affirmed a district court's dismissal on sovereign immunity grounds and held [opinion, PDF] that the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States. Justices Clarence Thomas and Antonin Scalia filed separate concurring opinions. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justice Stephen Breyer and in part by Justices Sonia Sotomayor and Elana Kagan.

The court heard arguments [JURIST report] in the case in January. Coleman argued that Congress passed the self-care leave provision in an effort to protect women from employment discrimination by giving all employees, men included, equal right to leave. The state of Maryland asserted that the self-care leave provision's purposes are not sufficiently in line with the Equal Protection Clause [Cornell LII backgrounder] to overcome states' sovereign immunity.




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Russia court rejects ban on Hindu holy book
Jennie Ryan on March 21, 2012 11:52 AM ET

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[JURIST] A Russian court in the Siberian province of Tomsk on Wednesday rejected a call to ban a translation of the Hindu holy book the Bhagavad Gita. Prosecutors in the case argued that a preface accompanying a 1968 translation of the text written by the founder of the International Society for Krishna Consciousness (ISKC) [official website], commonly known as the Hare Krishna movement, was hostile to other faiths. They argued that the translation was in violation of Russian anti-extremism laws. The court disagreed, upholding the decision of a lower court to reject the call to ban the text. The decision comes just days before days before Russian President Dmitry Medvedev [official profile] is scheduled to visit India. Indian officials have strongly criticized the attempted banning of the Bhagavad Gita. Last year, Indian External Affairs Minister SM Krishna [profile] characterized the case [ISKC report] as "patently absurd" stating that "we have treated this matter seriously and the Embassy of India is closely monitoring this legal case."

In 2007, the Russian parliament approved legislative amendments [JURIST report] to change the prevailing definition of extremist crime in Russian law to include activities taken for "political or ideological hatred." Since its approval, the Russian anti-extremism law has been used to ban allegedly offending materials in the country, including numerous websites. In July 2010, a Russian court made public a ruling banning access to five websites [JURIST report], including the video-sharing network Youtube [website], for what it called extremist elements. The decision came after a video entitled "Russia for Russians," also a Russian extremist slogan, was posted on YouTube. Other sites were blocked [Moscow Times report] for containing excerpts of Adolf Hitler's book Mein Kampf [Britannica backgrounder], which was banned by the Russian Prosecutor General's Office [official website, in Russian] in March 2010 after it was found in violation of laws against extremism.




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Wisconsin judges refuses to allow enforcement of voter ID law pending appeal
Katherine Getty on March 21, 2012 11:19 AM ET

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[JURIST] Dane County Circuit Court [official website] Judge Richard Neiss refused Tuesday to halt his ruling that Wisconsin's voter identification law [text, PDF] is unconstitutional. Neiss had previously ruled the law was unconstitutional [JURIST report] and the attorney general requested the law be enforced while they await appeal of his decision. The law requires a voter to display photo ID when entering a polling place to vote. Neiss's ruling earlier this month found that the law was unconstitutional because it went against the very idea of suffrage by preventing citizens from exercising their constitutional right to vote. Neiss's decision came after another Wisconsin judge issued a temporary injunction on the law. In his ruling, Judge David Flanagan found that Wisconsin's law was more restrictive [JURIST report] than new voter identification laws in other states. When Neiss struck down the motion [Green Bay Press Gazette report] he said he did so because when he found the law unconstitutional it is like "it never existed." He does not see any justification in enforcing the law.

This is one of four challenges to Wisconsin's voter ID law. The temporary injunction issued by Flanagan was in a suit filed in December by the National Association for the Advancement of Colored People (NAACP) [advocacy website]. The American Civil Liberties Union (ACLU), the ACLU of Wisconsin and the National Law Center on Homelessness & Poverty [advocacy websites] filed a federal lawsuit in December, as did the Advancement Project [JURIST reports] in February. There are now 31 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, including 15 states that require photo ID, but the issue remains controversial.




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Suriname lawmakers propose amnesty bill to end president's trial
Jennie Ryan on March 21, 2012 11:10 AM ET

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[JURIST] Lawmakers in Suriname [official website, in Dutch] on Wednesday proposed a bill that would amend the country's current amnesty law and extend amnesty to alleged offenses committed in defense of the state. The proposed amendment would effectively end the trial of President Desi Bouterse [official profile, in Dutch] who is accused of capturing and killing opponents of his regime during the "December Murders" at Fort Zeelandia, Paramaribo in 1982. The proposed measure would allow amnesty based on defense of state [AP report] for the period between April 1, 1980, and August 19, 1992, a period when Bouterse ruled the country as a military dictator and the region was engaged in civil war. Bouterse seized control of Suriname during a military coup in 1980, five years after the country achieved independence from the Netherlands. He stepped down in 1987 in the face of international pressure and briefly seized power in 1991. Bouterse was elected President of Suriname [Reuters report] in a parliamentary vote in 2010. Bouterse, who faces up to 20 years in prison, has staunchly denied his involvement.

Bouterse's trial has been ongoing since 2008. In April 2008, a military tribunal in Suriname ruled [JURIST report] that all suspects involved in a 1982 massacre must stand trial, including Bouterse. Bouterse's trial began [JURIST report] in July 2008 with former bodyguard Onno Flohr testifying that Bouterse was present at the killings of 15 political opponents, including lawyers, journalists, professors, military officers and businessmen, accused of plotting against the government and that he other members of the firing squad were ordered to fire under the threat of death. In 2009, the trial of the former dictator resumed [JURIST report] with testimony by a former prison warden that he brought a leader of a 1982 military coup to an army barracks for execution.




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Federal appeals court allows class action for Stanford Ponzi scheme victims
Katherine Getty on March 21, 2012 10:11 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Monday that victims of the $7 million Ponzi scheme orchestrated by Allen Stanford [BBC profile, JURIST news archive] may pursue a class action lawsuit. Stanford was convicted of defrauding victims in America and in Latin America. Monday's decision overturned a lower court decision that found the lawsuits violated the Securities Litigation Uniform Standards Act (SLUSA) [materials]. District Judge David Godbey had ruled against the suits because they related to securities fraud and therefore could not be brought in state court. The appeals court overturned that decision citing that the possible defendants misrepresented the security of CDs as well as the soundness of Stanford's bank:
Our conclusion that the allegations do not amount to being "in connection with" transactions in covered securities is bolstered by the distinction between the present cases and the Madoff feeder fund cases. Therefore, we find that the fraudulent schemes ... are not more than tangentially related to the purchase or sale of covered securities and are therefore not sufficiently connected to such purchases or sales to trigger SLUSA preclusion.
As these class action suits push forward, Stanford is awaiting sentencing after being found guilty [JURIST report] earlier this month. He could receive more than 20 years in prison for his crimes.

Stanford's trial began in January after a judge ruled in December that he was mentally competent [JURIST report] to stand trial. His lawyers were unsuccessful in arguing that he suffered from retrograde amnesia and diminished mental capacity as a result of head injuries sustained during a 2009 assault while in prison. Last year Stanford filed a lawsuit [JURIST report] accusing federal agents of violating his constitutional rights. The suit named 12 defendants, including members of the FBI, the SEC and the Department of Justice. Stanford alleged that the defendants used "abusive law-enforcement methods" to pursue a frivolous civil suit [JURIST report] against him in order to gather evidence for his criminal prosecution. In June 2009 Stanford pleaded not guilty [JURIST report] to 21 charges of fraud, conspiracy and obstruction.




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UN rights office concerned over Bahrain violence
Dan Taglioli on March 21, 2012 10:04 AM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights [official website] Tuesday expressed concern over reports of excessive force [press release] used by Bahraini security forces against citizen protesters. The alleged disproportionate use of force [UPI report] has involved birdshot pellets, rubber bullets and tear gas canisters being shot into crowds, resulting in a number of reported citizen deaths, particularly due to complications from tear gas inhalation. The government crackdown on the ongoing uprising against Bahraini King Hamad bin Isa Al Khalifa [official profile] prompted the monarch last year to order [materials; JURIST report] an independent fact-finding commission [Al Jazeera report] to investigate alleged violations of international human rights law and norms [OHCHR backgrounder], and to make appropriate recommendations based on its findings. The Bahrain Independent Commission of Inquiry (BICI) [official website] submitted its 500-page report [report, PDF; JURIST report] in November, documenting 46 deaths and 559 allegations of torture. Another commission was established to study the recommendations [JURIST report] of the BICI, the implementation of which is 90 percent complete, according to the Bahraini government. Opposition leaders and former government officials, however, have maintained that the achievements amount to a figure closer to 10 percent. In its statement the OHCHR called on the Bahraini government to further investigate the most recent accounts of violence against its citizens.

Protests and demonstrations in Bahrain [BBC backgrounder] have been ongoing since February 2011 [JURIST report]. In November, in anticipation of the BICI report, the Bahraini government admitted the use of excessive force [JURIST report] against protesters. Following the the submission of BICI report, Al Khalifa swore that reforms would be made. In January Al Khalifa promised to amend the nation's constitution to allow the National Assembly [official profile] more oversight of ministers and cabinet members. Last month a Bahraini court overturned the death sentences for two protesters convicted of killing two police officers during the demonstrations that took place in the country last year. The original conviction was rendered by a special security court set up as part of last year's three-month state of emergency [JURIST report], implemented while the country's Sunni rulers attempted to silence a Shiite-led to effort bolster civil and political rights in the country.




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Supreme Court hears arguments on life sentences for juveniles convicted of homicide
Jerry Votava on March 21, 2012 8:32 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Tuesday in the cases of Miller v. Alabama and Jackson v. Hobbs [transcripts; JURIST report] on whether the imposition of a life-without-parole sentence on a 14-year-old child convicted of homicide violates the Eighth and Fourteenth Amendment [text] prohibitions against cruel and unusual punishment. The court has also been asked to decide whether such a sentence violates the Eighth and Fourteenth Amendments when it is imposed upon a 14-year-old as a result of a mandatory sentencing scheme that categorically precludes consideration of the offender's young age or any other mitigating circumstances. In Jackson, the court will also address whether a life sentence violates the Eighth and Fourteenth Amendments when it is imposed upon a 14-year-old who did not personally kill the homicide victim, but was convicted on accessory liability without intent to kill. Petitioners Evan Miller and Kuntrell Jackson were represented by the same attorney, who argued for the court to extend its holding in Graham v. Florida [JURIST report] where the constitutional ban on cruel and unusual punishments prohibited the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide offense. His basic argument was that "to equate the failings of a child and an adult would be cruel." In Jackson he argued, "the differences between children and adults, these internal attributes, if you will, these deficits in judgment are not crime specific."

One of the concerns advanced by the justices regarded the age limit upon which to base a ban against mandatory life sentences. In Miller, Justice Antonin Scalia asked, "What's the distinction between 14 and 15? ... How are we to know where to draw those lines?" Later, Miller's attorney said, "I would hold that children are categorically prohibited from being subjected to [life] sentences," to which Justice Alito questioned, "what's the definition of a child for that purpose?" Miller's attorney called for 18 to be the minimum age needed to impose a life sentence, and pointed out that most of the jurisdictions that have considered the issue in a legislative context have adopted an age 18 minimum for mandatory life sentences. He offered that those jurisdictions that permitted the imposition of mandatory life-sentences did so through a regime that transferred juveniles to the adult criminal justice system where they are exposed to mandatory life sentences, not because of the express will of the people or their legislators to impose mandatory life sentences on juvenile offenders. He indicated that roughly 80 percent of life sentences imposed on juveniles were a result of mandatory sentencing regimes. In Jackson the attorney argued that Jackson had no intent to kill, and thus, that lower level of culpability could be used as a line by which to bar juvenile mandatory life sentences.




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