JURIST - Paper Chase: Saturday, January 19, 2013

[JURIST] The American Civil Liberties Union (ACLU) and ACLU of Kansas and Western Missouri [advocacy websites] on Friday ended their challenge to a 2011 Kansas law [HB 2075 materials] that restricts private health insurance companies from offering coverage for abortions [JURIST backgrounder] in their general plans. The withdrawal [Huffington Post report] follows a ruling [opinion, PDF] by the US District Court for the District of Kansas [official website] that the ACLU failed to prove that the legislature's primary motivation in passing the law was to make it more difficult to get an abortion. The holding prohibits the ACLU from raising the claims again or appealing the judge's earlier ruling. The court also ruled that the case would go forward to trial [JURIST report], but the parties agreed to dismiss all remaining claims, ending the case.

The lawsuit was originally filed by the ACLU [JURIST report] in 2011. In September of that year the court denied the ACLU's request for an injunction [JURIST report] to halt enforcement of the law while the litigation proceeds. Governor Sam Brownback [official website] signed HB 2075 into law in May 2011, one month after he signed two other pieces of legislation [JURIST report] restricting abortions in the state, specifically the Abortion Reporting Accuracy and Parental Rights Act [HB 2035, PDF], which requires unemancipated minors to obtain notarized parental signatures before an abortion may be performed, and the "fetal pain bill" [HB 2218, PDF], which restricts abortions beyond 22 weeks of pregnancy based on the controversial belief that a fetus can feel pain at that stage of gestation.

[JURIST] Former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] has been charged with murder [press release, in Ukrainian] for her role in the contract-style killing of Yevhen Shcherban and two others in 1996, Prosecutor General Viktor Pshonka [official profile, in Ukrainian] said Friday. Pshonka alleges that Tymoshenko and former prime minister Pavlo Lazarenko [JURIST news archive] ordered the murder of Shcherban, who was shot to death in an airport in 1996. Tymoshenko has previously claimed that the prosecution is "looking for a scapegoat" [press release], and her lawyers have accused the prosecution of fabricating charges [press release] to keep Tymoshenko imprisoned. Tymoshenko has already been sentenced to seven years [JURIST report] in prison on corruption charges and is currently awaiting trial for charges of tax evasion [JURIST report]. That trial has been postponed multiple times since it began in April.

The trials against the former Ukrainian prime minister have sparked international criticism. In September the US Senate Foreign Relations Committee [official website] unanimously passed [JURIST report] a resolution [text] calling for Ukraine to release Tymoshenko from prison. It condemned current Ukrainian President Viktor Yanukovych [official website] for his role in the allegedly politically motivated imprisonment. In August the Ukrainian Supreme Court [official website, in Ukrainian] upheld Tymoshenko's abuse of office conviction [JURIST report]. During the appeal the government denied allegations that the criminal proceedings against Tymoshenko were a measure initiated by Yanukovich to prevent her from participating in the October elections. The decision came only a day after the European Court of Human Rights [official website] held a hearing [JURIST report] on Tymoshenko's appeal. Also in August Ukrainian prosecutors urged the Supreme Court not to hear her appeal [JURIST report]. Prosecutors told the court that Tymoshenko's trial had already established her guilt in the case, and asked the judges maintain her seven-year sentence [JURIST report] in the case.

[JURIST] The US Supreme Court [official website] on Friday granted what may be the final four [order list, PDF] cases it will hear this term. After being considered in conference eight times, the court granted Bond v. United States [cert. petition, PDF; docket] and will determine whether Carol Anne Bond can be tried under the Chemical Weapons Convention Implementation Act [18 USC § 229 text], a federal law that enforces the international Chemical Weapons Convention [materials], which intends to ban the spread of international chemical weapons. Bond attempted to poison her husband's lover using highly toxic chemicals—10-chlorophenoxarsine and potassium dichromate [NIH backgrounders]—by applying the poisons to her nemesis' mailbox, car door handles, and house doorknob. She was then convicted under the Chemical Weapons Convention Implementation Act of acquiring, transferring, receiving, retaining, or possessing a chemical weapon. Two terms ago, the court ruled that Bond had standing [JURIST report] under the Tenth Amendment [text] to challenge the application of the treaty against her, but did not determine the merits of her claim. This time, the court will consider if Congress has the authority to intrude on local and state programs with an international treaty in order to continue complete compliance with the treaty. The court will also look at if the Chemical Weapons Convention Implementation Act "can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities" in light of the court's decision in Missouri v. Holland [opinion]. The US Court of Appeals for the Third Circuit upheld the conviction [opinion] stating, "because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that 'there can be no dispute about the validity of [a] statute' that implements a valid treaty, we will affirm Bond's conviction."

The court consolidated three cases in order to rule on the legal remedies available for the victims of convicted financier Allen Stanford [JURIST news archive], who is currently serving a 110-year prison sentence [JURIST report] for committing a $7 billion Ponzi scheme [SEC backgrounder]. The court will consider if the Securities Litigation Uniform Standards Act of 1998 (SLUSA) [text, PDF] precludes the various plaintiffs from pursuing class action lawsuits under state laws against investment firms that encouraged them to invest with Stanford. The cases granted are Chadbourne & Parke v. Troice, Willis of Colorado v. Troice and Proskauer Rose LLP v. Troice [dockets].

In University of Texas Southwestern Medical Center v. Nassar [cert. petition, PDF; docket] the court will consider whether the retaliation provision of Title VII of the Civil Rights Act of 1964 [42 USC § 2000e-2(a) text] requires a plaintiff to prove but-for causation [backgrounder] or instead requires only proof that the employer had a mixed motive [LII backgrounder]. The US Court of Appeals for the Fifth Circuit ruled [opinion] initially that the jury had found sufficient evidence for Dr. Naiel Nassar's retaliation claim, but not his constructive discharge claim. The University of Texas Southwestern Medical Center [official website] then appealed en banc on the "mixed motive" question, which a divided court declined to hear [opinion].

Finally, the court will hear Metrish v. Lancaster [cert. petition, PDF; docket], which concerns if it was an "unexpected and indefensible" change in a common-law doctrine of criminal law and thus a violation of due process rights [Cornell LII backgrounder] when the Michigan Supreme Court recognized a state statute that abolished the diminished capacity defense [Cornell LII backgrounder] and when the Michigan Court of Appeals applied it retroactively. Burt Lancaster was convicted in 1994 for first-degree murder, where he pleaded a defense of diminished capacity. That verdict was overturned due to a jury selection error, but when Lancaster was retried in 2005, he was not allowed to utilize diminished capacity as a defense. The US Court of Appeals for the Sixth Circuit ruled [opinion text] for Lancaster, stating "[p]reventing a defendant from presenting his only viable defense at trial is so prejudicial that holding the violation harmless would suggest that almost no constitutional violation would warrant reversal." The court is being asked to consider the case in light of Rogers v. Tennessee and Harrington v. Richter [opinions].

[JURIST] UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator Valerie Amos and the UN High Commissioner for Human Rights Navi Pillay [official profiles] stated [press release] on Friday that the continued violence in Syria is harming civilian human rights and humanitarian attempts at aiding those in need. Amos expressed particular concern [press release, PDF] for the vicious nature of the violence, the increased sexual violence and Syria's harsh winter. Four million people in Syria require assistance, and half of those have been internally displaced. The winter and ubiquitous violence are leaving thousands of people living in tents and lacking adequate access to food, medical equipment or services. Amos stated that response efforts are unable to reach millions of individuals due to lack of access and reduced funding. Pillay expressed concern over the death toll reaching 60,000 [JURIST report], stating, "The figures speak for themselves. Sixty thousand is not a figure that should be treated lightly." Both the Syrian government and the opposition forces have reportedly committed human rights violations.

The Syrian government has been engaged in a bloody conflict with numerous opposition groups [BBC backgrounder] since March 2011 when nationwide protests opposing the government of President Bashar al-Assad [BBC backgrounder; JURIST news archive] began. More than 50 countries asked [JURIST report] the UN Security Council [official website] on Monday to refer the situation in Syria to the International Criminal Court (ICC) [official website]. The revolt against Assad has lasted 21 months and began with protests that quickly turned into violence between Assad's forces and demonstrators. A study carried out by the UN Office of the High Commissioner for Human Rights [official website] reported that the average number of deaths per month has increased from the summer of 2011, where the monthly average was approximately 1,000, to July 2012, where the monthly average was 5,000 deaths. In October Pillay urged [JURIST report] world powers to work toward ending the suffering in Syria, emphasizing uniformity and cooperation among leaders to quell the violence.

[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Friday upheld [opinion, PDF] Wisconsin's controversial Budget Repair Bill [Act 10 text] which significantly limits the collective bargaining rights of public sector unions. Act 10 was signed into law by Wisconsin Governor Scott Walker [official website] in March 2011. Wisconsin's largest teachers' union, public sector union and five other unions challenged the law's constitutionality, claiming that Act 10 violated equal protection based on an irrational division of unions into two categories. Last March the district court had overturned [opinion, PDF] the portion of the law requiring yearly unions elections and said that the budget repair bill illegally prohibited automatic withdrawal of union dues from paychecks. The Seventh Circuit reversed the district court's ruling [AP report] and declared the entire law constitutional. Judge Hamilton partially dissented, stating that he would not have upheld the selective prohibition on payroll deductions for dues for a selective group of public employee unions.

The Budget Repair Bill has been the subject of legal and political controversy since its passage. The Wisconsin Law Enforcement Association (WLEA) [union website] in November filed a lawsuit in the Dane County Circuit Court [official website] challenging its constitutionality specifically as it pertains to law enforcement unions on the grounds that it violates their associational, speech, petition, advocacy and equal protection rights. A Dane County Circuit Court judge struck down [JURIST report] the law as it applies to school district and local government workers in September. Wisconsin Attorney General JB Van Hollen [official profile] filed an appeal [JURIST report] days later. In July the Wisconsin Supreme Court [official website] refused to reopen a case challenging the Budget Repair Bill because of a justice's refusal to recuse himself [JURIST report]. The Supreme Court's upholding of Act 10 in June 2011 overturned a Dane County Circuit Court's decision [JURIST reports] that struck down the law for violations of the open meetings rule.