vaccinationAll states require children to be immunized or to be in the process of receiving immunizations against certain contagious diseases before a child care facility or a school may admit them. For each state, the immunization schedule may be found in the state code or its administrative regulations, usually in the sections governing education (for schools) or public health (for child care facilities). Besides specific vaccine requirements, these schedules may also refer to the schedules provided by the United States Department of Health and Human Services, American Academy of Family Physicians, or American Academy of Pediatrics.

Where states significantly differ is in their recognition of exemptions from vaccination. All states grant a medical exemption to children who cannot be immunized for health reasons. For example, the administration of a vaccine may be contraindicated in children who are allergic to a component of the vaccine or have a suppressed immune system. These exemptions are specific to the vaccine and health condition, and remain so long as the contraindication lasts.

Additionally, 48 states and the District of Columbia permit parents to claim a non-scientific exemption, such as if their religious tenets or practices conflict with immunization or if their personal, philosophical or moral beliefs are opposed to immunization. The lone holdouts are Mississippi and West Virginia. However, in the event of an outbreak, child care facilities and schools may exclude children who have not been vaccinated against the disease until the end of the outbreak.

Verdict offers some insightful analysis into the issue of religious exemptions:

Below, you will find links to state codes, statutes and regulations governing the immunization of children who attend day care, child care, elementary schools, private schools and colleges.

Continue reading →

Alfred v. Walt Disney Co., Delaware Court of Chancery (1/14/15)
Civil Procedure

X WingThis complaint concerned the T-65 X-wing fighter plane, a fictional vehicle created in connection with the movie Star Wars Episode IV: A New Hope. Walt Disney Company owned the trademark for the fictional vehicle. Plaintiff developed a marketing plan pursuant to which Disney would license to a non-party the right to use the X-wing name and appearance, the non-party would develop the vehicle in the appearance of an X-wing (the “Flying Car”), and Plaintiff would raise the funds for development of the Flying Car. Plaintiff planned on promoting the Flying Car via tie-ins to Disney’s new Star Wars movie to be released in 2017. Plaintiff made an unsolicited proposal involving Star Wars marketing to Disney, but Disney responded that it was not interested in his proposal. Plaintiff filed this complaint against Disney and its CEO and Board Chairman, claiming that Defendants were “stalling the next evolution of human transportation on this planet.” The individual Defendants, both residents of California, moved to dismiss for lack of jurisdiction, and all Defendants moved to dismiss for failure to state a claim. The Court of Chancery granted the motions, holding that Plaintiff failed to perfect jurisdiction over the individual Defendants and failed to state a claim against any of the Defendants.

Read More: X-wing fighter lawsuit against ‘Star Wars’ rights-owner Disney is shot down by Delaware judge

Whitfield v. United States, United States Supreme Court (1/13/15)
Criminal Law

Whitfield, fleeing a botched bank robbery, entered 79-year-old Parnell’s home and guided her from a hallway to a room a few feet away, where she suffered a fatal heart attack. He was convicted of, among other things, violating 18 U. S. C.2113(e), which establishes enhanced penalties for anyone who “forces any person to accompany him without the consent of such person” in the course of committing or fleeing from a bank robbery. The Fourth Circuit held that the movement Whitfield required Parnell to make satisfied the forced-accompaniment requirement. The unanimous Supreme Court affirmed. A bank robber “forces [a] person to accompany him,” for purposes of section 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance. The word “accompany” does not connote movement over a substantial distance. The severity of the penalties for a forced-accompaniment conviction, a mandatory minimum of 10 years and a maximum of life imprisonment, does not militate against this interpretation; the danger of a forced accompaniment does not vary depending on the distance traversed.

Read More: North Carolina bank robber loses case at U.S. Supreme Court Continue reading →

In re Adoption of K.P.M.A., Oklahoma Supreme Court (10/14/14)

Constitutional Law, Family Law

babyThe issue this case presented for the Supreme Court’s review centered on the termination Respondent-appellant Billy McCall’s (Father) parental rights to K.P.M.A. (Child). Child was born out-of-wedlock to T.Z. (Mother) in 2012. Prospective adoptive parents, petitioners-appellees Marshall and Toni Michelle Andrews had had physical custody of the child since she was released from the hospital after birth. On appeal of his termination, father argued: (1) whether his due process rights were violated; (2) whether he received ineffective assistance of counsel during the termination proceedings; and (3) whether the trial court’s determination was supported by clear and convincing evidence. After review of the trial court record, the Supreme Court concluded that termination of the natural father’s parental rights was improper because the natural father’s due process rights were violated, and the termination of the natural father’s parental rights was not supported by clear and convincing evidence.

Zavodnik v. Harper, Indiana Supreme Court (9/30/14)
Civil Procedure

contractPlaintiff was an abusive litigant. In this case, Plaintiff filed a complaint against Defendant, which the trial court dismissed for failure to prosecute or comply with applicable rules under Ind. Trial Rule 41(E). The court of appeals dismissed Plaintiff’s appeal with prejudice for Plaintiff’s failure to file a timely brief and appendix. The Supreme Court denied Plaintiff’s petition to transfer jurisdiction and refrained from imposing sanctions or restrictions. This per curiam opinion also gave guidance to the state’s courts on options when confronted with abusive and vexatious litigation practices.

Read more: Inspired by man who filed more than 120 lawsuits, Indiana Supreme Court sets pro se limits

Duke v. State of North Carolina, US 4th Cir. (10/1/14)
Election Law

After the Supreme Court lifted certain Voting Rights Act, 42 U.S.C. 1973c, restrictions that prevented jurisdictions like North Carolina from passing laws that would deny minorities equal access, North Carolina began pursuing sweeping voting reform with House Bill 589. Plaintiffs and the federal government filed suit against North Carolina, alleging that House Bill 589 violates equal protection provisions of the United States Constitution and the Voting Rights Act and seeking a preliminary injunction. The court concluded that the district court abused its discretion in denying plaintiffs’ preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect. Accordingly, the court reversed the district court’s denial of the preliminary injunction as to House Bill 589’s elimination of same-day registration and prohibition on counting out-of-precinct ballots. The court affirmed the district court’s denial of plaintiffs’ request for a preliminary injunction with respect to the following House Bill 589 provisions: the reduction of early-voting days; the expansion of allowable voter challenges; the elimination of the discretion of county boards of elections to keep the pools open an additional hour on Election Day in “extraordinary circumstances”; the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and the soft roll-out of voter identification requirements to go into effect in 2016.

Read more: Divided appellate court strikes part of North Carolina’s controversial voting law Continue reading →

Levitt v. Yelp! Inc., US 9th Cir. (9/2/14)

Business Law, Internet Law

shooting starPlaintiffs, small business owners, filed a class action suit alleging that Yelp, an online forum, extorted or attempted to extort advertising payments from them by manipulating user reviews and penning negative reviews of their businesses. Plaintiffs filed suit against Yelp for violations of California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code 17200 et seq.; civil extortion; and attempted civil extortion. The district court dismissed the suit for failure to state a claim. The court concluded that Yelp’s manipulation of user reviews, assuming it occurred, was not wrongful use of economic fear, and that the business owners pled insufficient facts to make out a plausible claim that Yelp authored negative reviews of their businesses. Therefore, the court agreed with the district court that these allegations did not support a claim for extortion. The court held that, to state a claim of economic extortion under both federal and California law, a litigant must demonstrate either that he had a pre-existing right to be free from the threatened harm, or that the defendant had no right to seek payment for the service offered. Given these stringent standards, plaintiffs failed to sufficiently allege that Yelp wrongfully threatened economic loss by manipulating user reviews. None of the business owners have stated a claim of “unlawful” conduct on the basis of extortion. Therefore, the court dismissed the separate claims of civil extortion and attempted civil extortion. Further, plaintiffs’ UCL claim failed under the “unfair” practices prong. Accordingly, the court affirmed the judgment of the district court.

Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, US 3rd Cir. (8/18/14)

Communications Law, Constitutional Law

Chevy TahoeThe Fraternal Order of Police (FOP), an incorporated collective bargaining organization that represents the approximately 6,600 active police officers employed by the Philadelphia, operates a political action committee, COPPAC, for purposes of distributing contributions to candidates for local and state office. FOP, COPPAC, and four police officers challenged the constitutionality of section 10-107(3) of the Philadelphia Home Rule Charter, which prohibits employees of the Philadelphia Police Department from making contributions “for any political purpose,” 351 Pa. Code 10.10-107(3). The provision was enacted in 1951, based on Philadelphia’s history of political patronage. As interpreted by its implementing regulation, employees of the police department cannot donate to COPPAC because it uses some of its funds for partisan political purposes. The Charter ban applies only to the police, and does not proscribe political donations made by Philadelphia’s other 20,000 employees, the vast majority of whom are organized interests. The Third Circuit reversed summary judgment upholding the ban. Despite its valid concerns, the city did not explain how the ban serves in a direct and material way to address these harms. Given the lack of fit between the stated objectives and the means selected to achieve it, the Charter ban is unconstitutional.

Bostic v. Schaefer, US 4th Cir. (7/28/14)
Civil Rights, Constitutional Law, Family Law, Government & Administrative Law

gaypride_flagPlaintiffs filed suit challenging Virginia Code sections 20-45.2 and 20-45.3; the Marshall/Newman Amendment, Va. Const. art. I, 15-A; and any other Virginia law that bars same sex-marriage or prohibits the State’s recognition of otherwise-lawful same-sex marriages from other jurisdictions (collectively, the Virginia Marriage Laws). Plaintiffs argued that these laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district court granted plaintiffs’ motion for summary judgment and enjoined Virginia from enforcing the laws. As a preliminary matter, the court concluded that each of the plaintiffs had standing as to at least one defendant, and the court declined to view Baker v. Nelson as binding precedent. The court concluded that strict scrutiny analysis applied in this case where the Virginia Marriage Laws impede the right to marry by preventing same-sex couples from marrying and nullifying the legal import of their out-of-state marriages. Proponents contend that five interests support the laws: federalism-based interests, history and tradition, protecting the institution of marriage, encouraging responsible procreation, and promoting the optimal childrearing environment. The court concluded, however, that these interests are not compelling interests that justify the Virginia Marriage Laws. Therefore, all of the proponents’ justifications for the laws fail and the laws cannot survive strict scrutiny. Accordingly, the court concluded that the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages. The court affirmed the judgment of the district court.

Read More: Appeals Panel Rejects Virginia Gay-Marriage Ban Continue reading →

Two federal appeals courts this week issued conflicting opinions on Obamacare.

Health and LawKing v. Burwell, US 4th Cir. (7/22/14)
Health Law, Tax Law

Plaintiffs filed suit challenging the validity of an IRS final rule implementing the premium tax credit provision of the Patient Protection and Affordable Care Act (ACA), 26 U.S.C. 36B. The final rule interprets the Act as authorizing the IRS to grant tax credits to individuals who purchase health insurance on both state-run insurance “Exchanges” and federally-facilitated “Exchanges” created and operated by HHS. The court found that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, the court upheld the rule as a permissible exercise of the agency’s discretion. Accordingly, the court affirmed the judgment of the district court.

Halbig v. Burwell, US DC Cir. (7/22/14)
Health Law, Tax Law

Appellants challenged the IRS’s interpretation of 26 U.S.C. 36B, enacted as part of the Patient Protection and Affordable Care Act, under the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A). The district court held that the ACA’s text, structure, purpose, and legislative history make “clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges.” The district court held that even if the ACA were ambiguous, the IRS’s regulation would represent a permissible construction entitled to Chevron deference. The court concluded, however, that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State.” Accordingly, the court reversed the judgment of the district court and vacated the IRS’s regulation.

Read More: Second federal appeals court rules on health-care law, setting up a same-day circuit conflict Continue reading →

California FlagThis week, a federal judge in the U.S. District Court for the Central District of California issued a ruling that California’s death penalty is unconstitutional.  Read Courtney Minick’s analysis of the opinion on Justia’s Verdict: Federal Judge Strikes Down California Death Penalty: What This Could Mean for California.

Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, et al., US 5th Cir. (7/14/14)
Civil Rights, Constitutional Law

Plaintiff filed suit alleging that the Board violated its First Amendment right to free speech when it denied plaintiff’s application for a specialty license plate featuring the Confederate battle flag. The district court concluded that the Board had made a reasonable, content-based regulation of private speech. The court concluded that speech on specialty license plates is private speech and that the Board impermissibly discriminated against plaintiff’s viewpoint when it denied the specialty license plate. Accordingly, the court reversed the judgment of the district court and remanded.

Read More: Court rules Texas can’t ban sale of Confederate flag license plates

Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., US Federal Circuit (7/11/14)
Patents

Digital image processing involves electronically capturing an image of a scene with a “source device,” such as a digital camera, altering the image in a desired fashion, and transferring the altered image to an “output device,” such as a color printer. According to the 414 patent, all imaging devices impose some level of distortion on color and spatial properties because different devices allow for slightly different ranges of colors and spatial information to be displayed or reproduced. Prior art attempted to correct distortions using device-dependent solutions that calibrate and modify the color and spatial properties of the devices and device independent solutions that translate an image’s pixel data from a device dependent format into an independent color space, which can then be translated to output devices at a reduced level of distortion. The patent expands the device independent paradigm to disclose an improved device profile that includes both chromatic characteristic information and spatial characteristic information. Digitech filed infringement suits against 32 defendants. The district court found that all of the asserted claims were subject matter ineligible and invalid under 35 U.S.C. 101: the device profile claims are directed to a collection of numerical data that lacks a physical component or physical manifestation and the asserted method claims for generating a device profile encompass the abstract idea of organizing data through mathematical correlations. The Federal Circuit affirmed.

Read More: Latest CAFC Ruling Suggests A Whole Lot Of Software Patents Are Likely Invalid Continue reading →

Google EspañaLast month, the Court of Justice of the European Union issued a preliminary ruling on the right of natural persons to privacy with respect to the processing of personal data. In the case, Mr. Costeja González, a Spanish national, had lodged a complaint with the Agencia Española de Protección de Datos (AEPD), the Spanish Data Protection Agency, concerning a then 12-year-old announcement in La Vanguardia Ediciones SL, a Spanish newspaper, that mentioned a real-estate auction connected with attachment proceedings for the recovery of Mr. González’s social security debts. Mr. González wanted his personal data in the announcement removed from the La Vanguardia website. In addition, he wanted Google Inc. or Google Spain to remove the La Vanguardia web pages from its search results.

The AEPD rejected the complaint against La Vanguardia because the Ministry of Labour and Social Affairs had ordered the announcement to promote the auction and secure as many bidders as possible. However, the AEPD upheld the complaint against Google Spain and Google Inc. The Google companies then brought separate actions before the Audiencia Nacional (National High Court), which stayed the proceedings and referred several questions regarding Directive 95/46 to the Court of Justice of the European Union.

In upholding the right of data subjects to have certain search results associated with their names removed from search engines, the Court of Justice stated that search engines may initially be able to process accurate personal data regarding a person. However, over time, this right may conflict with the Directive if such results are “inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.” Accordingly, the right of privacy should be balanced against the economic interest of the search engine operator as well as the “interest of the general public in finding that information.” Continue reading →