by

New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, New York COA, (6/26/14)

SodaIn 2012, in an effort to combat obesity among residents of New York City, the New York City Board of Health amended the City Health Code so as to restrict the size of cups and containers used by food service establishments for the provision of sugary drinks. The proposed rule, referred to as the “Portion Cap Rule,” was to go into effect in 2013. Six not-for-profit and labor organizations challenged the Portion Cap Rule. Supreme Court, New York City declared the rule invalid and permanently enjoined its implementation. The Appellate Division affirmed. The Court of Appeals affirmed, holding that, in adopting the Portion Cap Rule, the Board of Health exceeded its regulatory authority and engaged in law-making, thereby infringing upon legislative jurisdiction.

Read More: Top state court says NYC can’t ban businesses from selling supersize sugary drinks to customers

McCullen v. Coakley, US Supreme Court (6/26/14)

Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” Mass. Gen. Laws, 266, 120E½. Exemptions cover “employees or agents of such facility acting within the scope of their employment.” Another provision proscribes knowing obstruction of access to an abortion clinic. Abortion opponents who engage in “sidewalk counseling” sought an injunction, claiming that the amendment displaced them from their previous positions and hampered their counseling efforts; attempts to communicate with patients are also thwarted by clinic escorts, who accompany patients to clinic entrances. The district court denied the challenges. The First Circuit affirmed. The Supreme Court reversed, first noting the involvement of a traditional public forum. The Court employed “time, place, and manner” analysis, stating that the Act is neither content nor viewpoint based and need not be analyzed under strict scrutiny. Although it establishes buffer zones only at abortion clinics, violations depend not “on what they say,” but on where they say it. The Act is justified without reference to the content of speech; its purposes include protecting public safety, patient access to health care, and unobstructed use of public sidewalks and streets. There was a record of crowding, obstruction, and even violence outside Massachusetts abortion clinics but not at other facilities. The exemption for employees and agents acting within the scope of their employment was not an attempt to favor one viewpoint. Even if some escorts have expressed views on abortion inside the zones, there was no evidence that such speech was authorized by any clinic. The Act, however, burdens substantially more speech than necessary to further the government’s legitimate interests. It deprives objectors of their primary methods of communicating with patients: close, personal conversations and distribution of literature. While the Act allows “protest” outside buffer zones, these objectors are not protestors; they seek to engage in personal, caring, consensual conversations with women about alternatives. Another section of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248(a), which imposes sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of driveways can be addressed by traffic ordinances. Crowding was a problem only at the Boston clinic, and only on Saturday mornings; the police are capable of ordering people to temporarily disperse and of singling out lawbreakers.

Read More: Court strikes down abortion clinic buffer zones


Posted in: Legal Research
by

Scialabba v. de Osorio, US Supreme Court (6/9/14)
Immigration Law

Statue of LibertyQualifying U.S. citizens and lawful permanent residents (LPRs) may petition for family members to obtain immigrant visas. A sponsored individual (principal beneficiary) is placed into a “family preference” category based on relationship to the petitioner, 8 U.S.C. 1153(a)(1)–(4). The principal beneficiary’s spouse and minor children qualify as derivative beneficiaries, entitled to the same status and order of consideration as the principal. Beneficiaries become eligible to apply for visas in order of priority date, the date a petition was filed. Because the process often takes years, a child may age out and lose status before she obtains a visa. The Child Status Protection Act (CSPA) provides that if the age of an alien is determined to be 21 years or older, notwithstanding allowances for bureaucratic delay, the petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  In this case, principal beneficiaries who became LPRs, filed petitions for their aged-out children (who did not have a qualifying relationship with the original sponsor), asserting that the newly filed petitions should receive the same priority date as their original petitions.  U. S. Citizenship and Immigration Services (USCIS) disagreed. The district court granted the government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination under section 1153(h)(3). The Ninth Circuit reversed, holding that the provision entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed, reasoning that each immigrant must have a qualified and willing sponsor. If an original sponsor does not have a legally recognized relationship with the aged-out children, another sponsor must be identified for the alien to qualify for a new family preference category. Immigration officials do not know whether a valid sponsor exists unless the aged-out beneficiary files and USCIS approves a new petition. Section 1153(h)(3) does not require a new petition for derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, the nieces, nephews, and grandchildren of the initial sponsors cannot qualify for “automatic conversion.”  The BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, first-served rule.

Read More:  Supreme Court setback for underage visa applicants

Read additional Supreme Court opinions handed down this week at Justia’s Supreme Court Center


Posted in: Legal News
by

Makowski v. Granholm, Michigan Supreme Court (6/3/14)
Constitutional Law, Criminal Law

Great Seal of MichiganPlaintiff-appellant Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then-Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions. The Governor had signed the commutation, it was signed by the Secretary of State and affixed with the Great Seal. Four days later, the Governor decided to revoke the order, and all copies of the commutation certificate were destroyed. Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued the Governor lacked the authority to revoke a completed commutation. The court granted defendants’ motion for summary judgment, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions. Plaintiff appealed. The Court of Appeals affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question. After its review, the Supreme Court concluded the Constitution did not give the Governor the power to revoke a validly granted commutation: “[b]ecause the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence.”

Read More: Michigan Supreme Court: Granholm wrongly revoked prisoner’s commutation

Limelight Networks, Inc. v. Akamai Techs, Inc., US Supreme Court (6/2/14)
Intellectual Property, Patents

Akamai is the exclusive licensee of a patent that claims a method of delivering electronic data using a content delivery network (CDN). Limelight also operates a CDN and carries out several of the steps claimed in the patent, but its customers, rather than Limelight itself, perform a step of the patent known as “tagging.” Under Federal Circuit case law, liability for direct infringement under 35 U.S.C. 271(a) requires performance of all steps of a method patent to be attributable to a single party. The district court concluded that Limelight could not have directly infringed the patent at issue because performance of the tagging step could not be attributed to it. The en banc Federal Circuit reversed, holding that a defendant who performed some steps of a method patent and encouraged others to perform the rest could be liable for inducement of infringement even if no one was liable for direct infringement. The Supreme Court reversed. A defendant is not liable for inducing infringement under section 271(b) when no one has directly infringed. The Federal Circuit’s contrary view would deprive section 271(b) of ascertainable standards and require the courts to develop parallel bodies of infringement law. Citing section 271(f), the Court stated that Congress knows how to impose inducement liability predicated on noninfringing conduct when it wishes to do so. Though a would-be infringer could evade liability by dividing performance of a method patent’s steps with another whose conduct cannot be attributed to the defendant, a desire to avoid this consequence does not justify fundamentally altering the rules of inducement liability clearly required by the Patent Act’s text and structure.

Read More: No liability for induced infringement when company and customer split patented steps, SCOTUS says

Wilkins v. United States, US 1st Cir. (6/3/14)
Criminal Law


Posted in: Legal News
by

May is Asian/Pacific American Heritage Month. In his proclamation, President Obama cited the accomplishments of Asian Americans, Native Hawaiians and Pacific Islanders and acknowledged the difficulties that members of this community have faced both historically and in the present.

Let’s take a short trip through our nation’s case law to look at some of these difficulties. Your lessons in school might not have given you a complete picture on American history.

1. Korematsu v. United States

Exclusion Order No. 34

Photo Credit: National Park Service.

Fred Korematsu, an American citizen of Japanese descent, challenged his conviction for remaining in San Leandro, California, in violation of Exclusion Order No. 34, which required all persons of Japanese ancestry to evacuate from a designated geographical area. The Supreme Court stated that “legal restrictions which curtail the civil rights of a single racial group” must be subject to the most rigid scrutiny. “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

To justify the exclusion order, the Court cited the “definite and close relationship” between the exclusion order and “the prevention of espionage and sabotage.” The Court acknowledged the overinclusive nature of the exclusion order, noting that most of the people impacted by the exclusion order were “no doubt . . . loyal to this country.” However, the Court was not prepared to question the military’s judgment that “it was impossible to bring about an immediate segregation of the disloyal from the loyal” and upheld the exclusion order.

In dissent, Justice Frank Murphy acknowledged the deference that must be accorded to the military in its prosecution of the war. Nevertheless, the order by the military to remove all persons of Japanese ancestry from the Pacific Coast was not reasonably related to its claimed goal of preventing sabotage and espionage because the reasons offered in support of the exclusion order were based not on expert military judgment, but on “misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices.”

Even if “some disloyal persons of Japanese descent on the Pacific Coast [] did all in their power to aid their ancestral land,” “to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights.”

See Korematsu v. United States, 323 U.S. 214 (1944)


by

Robinson v. Legro, Colorado Supreme Court (5/27/14)
Injury Law

Pug PackA bicyclist was attacked by two ranch dogs herding sheep while participating in a mountain bike race. The cyclist and dogs were on federally owned land on which the attack took place, subject to a sheep grazing permit and a recreational use permit. The cyclist sustained serious injuries during the attack. The cyclist and her husband sued the dog’s owners, alleging negligence, negligence per se and loss of consortium. They also brought a strict liability claim under Colorado’s dog bite statute. The shepherds moved for summary judgment, arguing that: (1) the Colorado Premises Liability Act preempted the cyclist’s common law claims; and (2) they were immune from strict liability under the working-dog exemption to the dog bite statute. The district court granted the shepherds’ motion. The court of appeals reversed, interpreting the working dog exemption as applicable only when the dog is on the owner’s own property. The Supreme Court disagreed and reversed the appellate court: the exemption applied when a dog bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner.


Posted in: Legal News
by

Nearly 70 years ago, this wind-swept beach on the coast of Normandy witnessed the turning of the war.

Utah Beach


Posted in: Holidays
by

Petrella v. Metro-Goldwyn-Mayer, Inc., US Supreme Court (5/19/14)
Civil Procedure, Copyright, Entertainment & Sports Law

Copyright SymbolThe Copyright Act protects works published before 1978 for 28 years, renewable for up to 67 years, 17 U.S.C. 304(a). An author’s heirs inherit renewal rights. If an author who has assigned rights dies before the renewal period the assignee may continue to use the work only if the author’s successor transfers renewal rights to the assignee. The Act provides for injunctive relief and damages. Civil actions must be commenced within three years after the claim accrued-ordinarily when an infringing act occurred. Under the separate-accrual rule, each successive violation starts a new limitations period, but is actionable only within three years of its occurrence. The movie, Raging Bull, is based on the life of boxer Jake LaMotta, who, with Petrella, told his story in a screenplay copyrighted in 1963. In 1976 they assigned their rights and renewal rights to MGM. In 1980 MGM released, and registered a copyright in, Raging Bull. Petrella died during the initial copyright term, so renewal rights reverted to his daughter, who renewed the 1963 copyright in 1991. Seven years later, she advised MGM that it was violating her copyright. Nine years later she filed suit, seeking damages and injunctive relief for violations occurring after January 5, 2006. The district court dismissed, citing laches. The Ninth Circuit affirmed. The Supreme Court reversed. Laches cannot bar a claim for damages brought within the three-year window. By permitting retrospective relief only three years back, the limitations period takes account of delay. Noting the “essentially gap-filling, not legislation-overriding,” nature of laches, the Court stated that it has never applied laches to entirely bar claims for discrete wrongs occurring within a federally prescribed limitations period. It is not incumbent on copyright owners to challenge every actionable infringement; there is nothing untoward about waiting to see whether a violation undercuts the value of the copyrighted work, has no effect, or even complements the work. The limitations period, with the separate-accrual rule, allows an owner to defer suit until she can estimate whether litigation is worth the effort. Because a plaintiff bears the burden of proof, evidence unavailability is as likely to affect plaintiffs as defendants. The Court noted that in some circumstances, the equitable defense of estoppel might limit remedies. Allowing this suit to proceed will put at risk only a fraction of what MGM has earned from Raging Bull and will work no unjust hardship on innocent third parties. Should Petrella prevail on the merits, the court may fashion a remedy taking account of the delay and MGM’s alleged reliance on that delay.

Read More: ‘Raging Bull’ copyright suit isn’t barred by doctrine of laches, SCOTUS rules


Posted in: Legal News
by

Bain, et al. v. MJJ Productions, Inc., et al., US DC Cir. (05/13/14)
Civil Procedure

gavelRaymone Bain and her firm filed suit against Michael Jackson and his production company, MJJ Productions, Inc., claiming to be owed substantial sums for various services rendered. Defendants moved to dismiss, relying principally on a December 2007 release agreement where Bain broadly relinquished any claims against Jackson and his business entities. The district court granted summary judgment in favor of MJJ, holding that the release agreement precluded Bain’s claims. Bain moved for relief from judgment under Rule 60(b)(2) five months later. The “newly discovered evidence” cited by Bain was an April 2008 letter from Jackson to Bain, in which Jackson stated that he had no awareness of, and had never signed, the release agreement on which the district court had grounded its grant of summary judgment. The district court held that a movant’s awareness of evidence automatically precludes relief under Rule 60(b)(2), regardless of the evidence’s availability. The court found that to be an unduly constricted understanding of “newly discovered evidence” for purposes of Rule 60(b)(2). The court concluded, however, that the district court committed no abuse of discretion by looking beyond Bain’s efforts in searching her own files and considering whether she mentioned the letter to the court or sought its assistance in locating the evidence. Because Bain failed to exercise reasonable diligence in seeking out the letter, the court affirmed the judgment of the district court.

Read More: Michael Jackson’s Former Publicist Can’t Revive $44 Million Lawsuit

Bickley v. Dish Network, US 6th Cir. (5/13/14)
Banking, Communications Law, Consumer Law

American Satellite, a third party retailer of Dish Network satellite television services, received a call from a potential customer. A woman, who identified herself as “Dickley,” provided what she claimed to be her social security number. In actuality, the number belonged to a man named Bickley. Dickley was an identity thief. The agent entered Dickley’s name and social security number into an interface that connects to credit reporting agencies. Unable to verify the information, American Satellite informed Dickley that her attempt to open an account was declined. Bickley later received a credit report indicating that Dish had made an inquiry on his name. Dish informed him that someone had attempted to open an account in his name, providing a recording of the conversation between the agent and the identity thief. A year later, despite knowing that the inquiry had prevented the theft of his identity, Bickley filed suit under the Fair Credit Reporting Act, 15 U.S.C. 1681b, alleging request and use of his credit report without a “permissible purpose” and sought emotional distress damages. The district court entered summary judgment for Dish, including a counterclaim for abuse of process. The Sixth Circuit affirmed, referring to the conspicuous underdevelopment of key factual detail in Bickley’s complaint and in briefs as “bordering on deceitful” and to the adage that no good deed goes unpunished.


Posted in: Legal News
by

EraserBy now, you’ve all read that Justice Antonin Scalia made a series of mistakes in the dissenting opinion of EPA v. EME Homer City Generation, L.P. The Supreme Court issued a corrected version of the opinion on its website. For more on the story, read the coverage in the WSJ Law Blog, the Volokh Conspiracy, or SCOTUSBlog. They’ll give you the background – this post will discuss publishing implications, and why it’s problematic that the Court doesn’t notify the public when they make revisions to opinions.

Here’s how the Supreme Court’s electronic publishing process works. The first version of the opinion, called the bench opinion, is released in XML format to a handful of publishers (the “Project Hermes” feed). Later that day, a PDF version – the “slip opinion” – is released on the Court’s website. The slip opinions may be further edited, and then the official opinions are published in the bound volumes as citable opinions.

The Supreme Court’s website issues the following disclaimer about the slip opinions found therein:

Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and–one year after the issuance of that print–by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.

The Court occasionally issues new versions of slip opinions, but they don’t always notify the public when they do so.  Professor Emeritus of Cornell Law School and legal information expert Peter Martin has written about this, noting that most changes are for minor typographical errors. However, there have been instances where a significant change was made:

Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

The changes made to Scalia’s dissent in EME Homer were arguably significant. They were also very public. As far as I can tell, it was Law Professor Richard Lazarus who first discovered the error. He blogged about it, it was picked up by national news, and that’s why we know that the change was made. The Supreme Court notified Professor Lazarus of the change, but there is no mention of it on their site. They simply swapped opinions.


by

Town of Greece v. Galloway, United States Supreme Court (5/5/14)
Constitutional Law, Government & Administrative Law

PrayerSince 1999, Greece, New York has opened monthly town board meetings with a roll call, recitation of the Pledge of Allegiance, and a prayer by a local clergy member. While the prayer program is open to all creeds, nearly all local congregations are Christian. Citizens alleged violation of the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers and sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” The district court entered summary judgment upholding the prayer practice. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that the town endorsed Christianity.  A divided Supreme Court reversed, upholding the town’s practice. Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Most states have also had a practice of legislative prayer and there is historical precedent for opening local legislative meetings with prayer. Any test of such a practice must acknowledge that it was accepted by the Framers and has withstood the scrutiny of time and political change. The inquiry is whether the town of Greece’s practice fits within that tradition. To hold that invocations must be nonsectarian would force legislatures sponsoring prayers and courts deciding these cases to act as censors of religious speech, thus involving government in religious matters to a greater degree than under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. The First Amendment is not a “majority rule” and government may not seek to define permissible categories of religious speech. The relevant constraint derives from the prayer’s place at the opening of legislative sessions, where it is meant to lend gravity  and reflect values long part of the Nation’s heritage. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based only on the content of a particular prayer will not likely establish a constitutional violation. If the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers to achieve religious balance.


Posted in: Legal News