April 27 – May 1, 2009
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U.S. 2nd Circuit Court of Appeals, April 28, 2009 Molinari v. Bloomberg , No. 09-0331 In an action challenging amendments to New York term limits legislation, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiffs do not have a viable First Amendment claim as any chilling of plaintiffs’ First Amendment activity is self-imposed and thus incidental and constitutionally insignificant; 2) the challenged law does not violate plaintiffs’ substantive due process rights guaranteed by the Fourteenth Amendment; 3) New York Municipal Home Rule Law sec. 23(2)(b) does not require a referendum to enact the challenged law; and 4) court properly dismissed plaintiff’s claim that defendants violated the conflicts of interest provisions of the City Charter as any any conflict of interest was not in the terms and conditions of public office.
U.S. 3rd Circuit Court of Appeals, April 27, 2009 McTernan v. City of York , No. 07-4437 In a First Amendment action, district court’s judgment is affirmed in part and vacated and remanded where: 1) the court erred in granting summary judgment in favor of the officer on plaintiff’s free exercise claim as a reasonable jury could conclude that the restriction imposed on plaintiff failed the general applicability requirement; 2) the court erred in granting summary judgment on plaintiff’s free speech claim as significant fact questions persist as to whether the restriction was narrowly tailored and burdened no more speech than necessary to protect traffic safety; and 3) the court properly dismissed plaintiff’s municipal liability claims against the defendant and co-defendants in their official capacity.
U.S. 3rd Circuit Court of Appeals, April 27, 2009 Holman v. City of York , No. 07-4438 In a First and Fourth Amendment action, district court judgment is affirmed where: 1) plaintiff failed to demonstrate a cognizable First Amendment violation; 2) plaintiff’s Fourth Amendment claim fails as the officer had probable cause to arrest plaintiff for trespass at the scene; and 3) the court properly dismissed plaintiff’s municipal liability claims against the defendant and co-defendants in their official capacity.
U.S. 3rd Circuit Court of Appeals, April 27, 2009 Snell v. City of York , No. 07-4439
In a First and Fourth Amendment action, district court’s judgment is affirmed in part and vacated and remanded where: 1) the court erred in granting summary judgment on plaintiff’s Free Exercise claim as the question of whether the interests asserted by the government were compelling is a matter for jury determination; 2) the court erred in its judgment on plaintiff’s free speech claim as there is substantial doubt that the challenged restriction complied with the narrow tailoring requirement; 3) court’s disorderly conduct judgment should be remanded as a rational jury could find the plaintiff did not create a hazardous or physically offensive condition and thus the officer lacked probable cause for the arrest; 4) the court properly granted summary judgment on plaintiff’s excessive force claim; and 5) the court properly dismissed plaintiff’s municipal liability claims against the defendant and co-defendants in their official capacity.
U.S. 6th Circuit Court of Appeals, April 27, 2009 Bowman v. US, No. 07-4322 In an Equal Protection Clause challenge to Air Force regulations denying military service credit to airmen volunteering with religious organizations, the dismissal of the complaint is affirmed where: 1) the regulations did not contradict the enabling statute; and 2) the regulations prohibited credit for for-profit employment as well and thus were not targeted at religion.
U.S. 8th Circuit Court of Appeals, April 30, 2009 Rucker v. Norris , No. 08-1970 Denial of claims brought under a petition for habeas relief is affirmed where: 1) trial court’s refusal to give a jury instruction on voluntariness was not a violation of plaintiff’s rights as the voluntariness of a confession is a matter decided by the court and not the jury; 2) state court decision that any error in excluding inmate testimony was harmless was not an unreasonable application of plaintiff’s constitutional rights under the Court’s ruling in Crane, as the evidence was cumulative; and 3) the state courts did not violate plaintiff’s right to due process and to present a complete defense in denying his postconviction petition to require additional fingerprint testing as the claim was procedurally barred since plaintiff raised no issue of federal constitutional law and cited no federal authority in the state courts.
U.S. 9th Circuit Court of Appeals, April 27, 2009 Robinson v. York, No. 07-56312 In a 42 U.S.C. section 1983 action by a police officer alleging that his department violated the First Amendment by failing to promote him because he reported misconduct, the denial of qualified immunity to Defendants is affirmed, where Plaintiff spoke on matters of public concern, and his speech was protected even if it violated department guidelines.
U.S. 9th Circuit Court of Appeals, May 01, 2009 Alaska v. EEOC, No. 07-70174 In a petition for review of the EEOC’s denial of Alaska’s sovereign immunity in an administrative proceeding, the petition is denied where: 1) the Government Employee Rights Act clearly abrogated the U.S.’s sovereign immunity; and 2) the alleged sexual harassment by government officials violated the Equal Protection Clause.
U.S. D.C. Circuit Court of Appeals, May 01, 2009 Ass’n of Flight Attendants v. DOT, No. 08-1165 Petition for review of a U.S. DOT decision to authorize an airline to provide interstate air transportation is dismissed, where Petitioner flight attendant association lacked standing to challenge the DOT order because there was no evidence that another airline reduced its flight attendant staff due to competition by the airline at issue. .
New York Court of Appeals, April 30, 2009 Kipper v. NYP Holdings Co., No. 54 In a defamation action concerning Defendant’s statements about the revocation of Plaintiff’s medical license, summary judgment for Defendant is affirmed, where there was no clear and convincing evidence that Defendant published the erroneous statement with reckless disregard for the truth.
California Appellate Districts, April 30, 2009 In re Nuñez, No. G040377 Petition for habeas corpus is granted where: 1) plaintiff’s sentence of life without parole constitutes cruel and unusual punishment and violates Article 1, sec. 17 of the California Constitution based on plaintiff’s youth, the lack of injury to any victim, plaintiff’s personal circumstances, and additional reasons; 2) plaintiff’s sentence is arbitrary and capricious punishment in violation of the Eighth Amendment as plaintiff is the only known offender under age 15 across the country and around the world subjected to a life without parole sentence for a nonhomicide, no-injury offense. .