Friday, September 29, 2006
Roberts' second term as chief justice begins Monday with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.
The cases will bring crucial and tricky choices for the Court's other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O'Connor on the bench, as well as for Justice Anthony Kennedy, who replaced O'Connor in the less official position of swing voter
Thursday, September 28, 2006
Wednesday, September 27, 2006
Tuesday, September 26, 2006
The Supreme Court disagreed, holding that the classification is not all health care providers who receive in-house referrals, but rather just physical therapists. And since the classification treats all PTs the same, the Court upheld it as constitutional. Justice Toal dissented:
The majority concludes that it would be inappropriate to hold that the legislature must treat all health care providers and allied health professionals as similarly situated for purposes of self-referral issues. I disagree. In my view, this is precisely the type of situation in which the legislature should treat all health care providers and allied health professionals as similarly situated. Unlike the majority, I would find that the classification has no reasonable relation to the types of variations and nuances of the medical profession which would necessitate a distinction between physical therapist and all other health care professionals. Although I would agree that the separate classification of physical therapists may be appropriate in other situations, I find it difficult to envision any aspect of physical therapy which is so different from other health care services that it warrants separate classification for self-referral purposes.
I was amicus curiae for a group of patients who wanted the statute struck down. Needless to say, I'm with Justice Toal on this one!
Monday, September 25, 2006
An interesting dispute developed on the panelregardingf the Fourth Amendment claim. Judge Traxler in dissent argued that t Fourth Amendment claim was improper and that the true claim was a takings claim under the Fifth Amendment. The dissent saw the case an one of inverse condemnation and believed that the majority's decision upsets federal inverse condemnation law.
Friday, September 22, 2006
It is unconstitutional for Sen. Lindsey Graham to serve as a member of Congress and a military judge at the same time, the U.S. Court of Appeals for the Armed Forces ruled.
Graham, R-S.C., is a colonel in the U.S. Air Force Standby Reserve, and is assigned as a reserve judge to the Air Force Court of Criminal Appeals.
The decision Wednesday came after Airman 1st Class Charles M. Lane, who was convicted of wrongful use of cocaine during a special court-martial, challenged Graham's qualification to serve on the appellate court, saying it was a conflict of interest.
"We conclude that a member of Congress may not hold the office of appellate judge on a court of Criminal Appeals," the panel said in its decision.
The opinion of the court can be found here.
The Incompatibility Clause of the Constitution provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The issue before the Court was whether the assignment of a Member of Congress to the Air Force Court of Criminal Appeals is proper under the Constitution. The Court concluded that the assignment was inappropriate because of the clear violation of the Incompatibility Clause.
Thursday, September 21, 2006
The South Carolina Supreme Court is weighing the questions of whether or not charitable trust law applies to the nearly 200 acres of Department of Mental Health land in downtown Columbia and under what conditions the property may be sold.
The state Supreme Court heard arguments Wednesday, after the Mental Health Commission and the State Budget and Control Board asked the state's top court to clarify whether a trust controls the massive Bull Street campus.Attorney General Henry McMaster said the agency's mission is a public charity and the entire Bull Street property is thus a charitable trust, an argument he also gave in an opinion he issued last December.
"A charitable trust is not an office or an address or a location but it's a relationship and that clearly existed here," McMaster said, adding that promises dating to the 1800s call for the land to be used to care for the mentally ill.McMaster said the state couldn't just sell the land for another use. "Most properties bought by the state can be handled in that fashion but this one was different," McMaster said.
Wednesday, September 20, 2006
Tuesday, September 19, 2006
HH: And will you vote to send William Haynes to the floor?
LG: He hasn't yet, but the truth is, I'll have a hard problem voting for Mr. Haynes. And you know, everybody else, I'm good to go, but I'll have a hard problem voting for him.
HH: Why is that?
LG: Because I believe that he was a responsible party at the Department of Defense at a time to come up with legal infrastructure in the War On Terror that really confused our troops. And I just don't want to make sure we put privates and sergeants in jail and fire the colonels. I think there has to be some accountability at the civilian side in the Department of Defense for creating policies that really have hurt the country. He's a good guy. He's an honest man, but I just have a hard time reconciling that, and he hasn't answered all the questions, yet, so I don't know where he's going to be. But I will not stop him from coming out of committee. If I don't vote for him, you can still send it to the floor.
Current and retired members of the armed forces whose retirement pay has been divided in state divorce proceedings, sued the Secretary of Defense arguing that the Act and the regulations implementing it violate their constitutional rights to due process and equal protection of law. They also allege that the Act fails to respect the principle, purportedly rooted in the Constitution's Armed Forces and Full Faith and Credit Clauses, that legislation concerning military pay must have nationally uniform effect without variations among the states. The panel upheld the Act and rejected all constitutional challenges of Plaintiffs
Friday, September 15, 2006
William W. Wilkins, chief judge of the 4th U.S. Circuit Court of Appeals, says death penalty is here to stay
"I think the death penalty will be around for a long time," Wilkins said. "But I think you're going to see escalating costs." Those opposing the death penalty argue the money can be better spent elsewhere, he said.
"It costs a lot of money for the federal and the state governments to prosecute somebody for the death penalty," Wilkins said. In Florida, such cases average about $22 million, he said.
Wilkins, a former prosecutor, has been involved in 96 death-penalty cases as an attorney or judge. He is chief judge of the Richmond, Va.-based federal court that hears appeals of federal cases from the Carolinas, Virginia, West Virginia and Maryland.
He said while polls show a majority of Americans favor the death penalty, jurors impose capital punishment in only about 10 percent of death-penalty cases.
Thursday, September 14, 2006
"If she gets emotional, I will grant a motion for a mistrial," Roberts said, eliciting emphatic headshakes from Dosso's friends and family. "If [the prosecutor] wants to put her on the stand with that in mind, he may do so."
In a compromise, both sides agreed to let the witness give her testimony outside the presence of the jury and then play a video of the testimony for the jury if it was deemed "unemotional" enough.
Wednesday, September 13, 2006
Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.
(1) Virginia Code 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and
(2) Virginia Code 4.1-119(A), which authorizes state owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.
The first statute was upheld because it does not favor in-state producers and thus does not discriminate against out-of-state producers:
Because the Twenty-first Amendment "grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system," and because the dormant Commerce Clause only prevents a State from enacting regulation that favors in-state producers and thus discriminates against interstate commerce, the Personal Import Exception does not violate the Clause.
The second statute was upheld under the market participant exception:
Virginia's choice of selling only Virginia wine is no more inappropriate than would be its choice to sell only Hershey's brand chocolate bars at a State commissary. Like all other in-state wine retailers, the ABC stores can choose which wines they purchase and stock, and Virginia's commitment to purchase only in-state wines is a choice that any wine retailer would be free to make for itself.
Tuesday, September 12, 2006
The South Carolina Supreme Court will hear arguments next month in the appeal of the murder conviction for a boy convicted of killing his grandparents in Chester County.
Christopher Pittman's attorneys are appealing the conviction last year in the 2001 slayings. Pittman was 12 at the time of the slaying. His attorneys said he was involuntarily intoxicated by the anti-depressant Zoloft and didn't know right from wrong.
Defense attorney Andy Vickery says there were errors in the trial and that sentencing a juvenile to 30 years in prison amounts to unconstitutional punishment.
The lawsuit, filed on behalf of Bert's Bar on Sullivan's Island, seeks to prove that smoking bans on the municipal level are prohibited under state law. In the suit, the restaurant argues that the Sullivan's Island ban that went into effect in May runs afoul of the Clean Indoor Air Act of 1990, which prohibits smoking in areas such as schools, government buildings and theaters, and a 1996 provision that says local laws cannot supersede state law.
Monday, September 11, 2006
Fourth Circuit holds that district courts lack authority to remit restitution order imposed under the Mandatory Victim Restitution Act
The panel held that the MVRA, in narrow circumstances, does allow for the reduction of an order of restitution where the victim has recovered a portion of the loss in a federal or state civil proceeding. However, this one exception was not present in this case. The Fourth Circuit concluded: "Because the MVRA includes one unique circumstance where district courts may reduce a mandatory order of restitution, we will not read into the statute any additional authority to remit such orders." Hence, the Court remanded with instructions to reinstate the restitution orders.
Wednesday, September 06, 2006
While we believe that Congress contemplated that "cocaine base" would include cocaine in the form commonly referred to as "crack" or "rock" cocaine, Congress neither limited the term to that form in the plain language of the statute nor demonstrated an intent to do so in the statute's legislative history. Congress used the chemical term "cocaine base" without explanation or limitation.
Tuesday, September 05, 2006
As for the first prong, the Court found that the allegations that Sudan supplied terrorists with "safe houses" constituted material support. The second prong was satisfied because the complaint alleged that the president of the Republic of Sudan authorized the entry into Sudan by Al-Qaeda operatives and gave Al-Qaeda special authority to avoid paying taxes and duties. Finally, the third prong was satisfied because the Complaint alleged facts sufficient to establish a reasonable connection between Sudan's support of Al-Qaeda and the damage to the USS Cole.