Articles Posted in Constitutional Law

May 4 -8, 2009

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U.S. Fed. Circuit Court of Appeals, May 05, 2009 Ellamae Phillips Co. v. US , No. 08-5042 In a takings action, district court grant of summary judgment against the government is vacated and remanded where court of Federal Claims improperly applied the present court’s prior decision in Hash v. US in ruling that a taking had occurred, as Hash did not decide the scope of the easement granted under the 1875 Act or whether any residual easement has been abandoned in this case.

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.
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April 13 – April 17, 2009

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U.S. 2nd Circuit Court of Appeals, April 16, 2009 Matar v. Dichter, No. 07-2579 In an action broungt by survivors of Israeli bombing in Gaza, seeking damages for war crimes and violations of international law, district court’s dismissal of plaintiff’s claims for lack of jurisdiction on grounds that defendant is immune from suit under the Foreign Sovereign Immunities Act is affirmed where, although questions exist as to whether the Act applies to former officials like defendant or not, common law principles that predate and survive the enactment of the Act still apply and recognize the immunity of former foreign officials for acts performed in their official capacity.

U.S. 5th Circuit Court of Appeals, April 08, 2009 Davis v. Tarrant Cty., No. 07-11223 In a 42 U.S.C. section 1983 action seeking admission to a state system of appointing attorneys in felony cases, the dismissal of the complaint is affirmed, where Plaintiff lacked standing because he failed to show that his application would have been denied had he reapplied for the position after changes in the system. .

U.S. 7th Circuit Court of Appeals, April 06, 2009 US v. Benson , No. 08-1312 District court action enjoining defendant from selling materials based on his premise that customers could stop paying federal income taxes and avoid or defeat prosecution by relying on the materials is affirmed where: 1) defendant violated 26 U.S.C. sec. 6700 by selling an illegal method by which to avoid paying taxes, and knew that his statements regarding the illegal plan were false or fraudulent; and 2) the injunction was properly issued and did not violate the First Amendment. Denial of government’s request to require defendant to divulge a list of his customers is reversed where: 1) defendant would not be harmed by identifying his customers and it would serve the public interest for the government to receive the full list; and 2) an order divulging the client list does not infringe on the First Amendment rights of defendant’s customers.

U.S. 7th Circuit Court of Appeals, April 09, 2009 City of Joliet v. New West, L.P. , No. 08-3032 In an action involving eminent domain proceedings, district court judgment is affirmed where neither the National Housing Act nor the Multifamily Assisted Housing Reform and Affordability Act preempts state and local condemnation laws.
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March 30 – April 3, 2009:

U.S. 2nd Circuit Court of Appeals, April 01, 2009 Garcia v. Yonkers Sch. Dist. , No. 07-3167 In an First Amendment action between students and school district, district court’s grant of attorney’s fees to plaintiff is reversed where plaintiffs were not prevailing parties in the matter as the court did not issue a preliminary injunction or a temporary restraining order and therefore there was no basis for according prevailing party status. ..

U.S. 4th Circuit Court of Appeals, April 02, 2009 Andrew v. Clark, No. 07-1184 In a 42 U.S.C. section 1983 action alleging that Defendants violated Plaintiff’s First Amendment rights by retaliating against him for releasing an internal police memorandum, the complaint’s dismissal is vacated, where there was a dispute as to whether Plaintiff released the memorandum as part of his official duties.

U.S. 1st Circuit Court of Appeals, March 30, 2009 Coors Brewing Co. v. Méndez-Torres, No. 07-2682 In an action challenging a beer tax exemption as unconstitutional under the Commerce Clause, district court’s grant of defendant’s motion to dismiss is reversed and remanded where: 1) the court erred in finding that the decision of the jurisdictional issue in the earlier Calderón action precluded consideration of that issue in the current suit; 2) plaintiff’s action is not barred by the Butler Act limiting federal jurisdiction in Puerto Rico or by principles of comity; 3) the PR Supreme Court’s decision in Brewers does not provide a basis for granting defendant’s motion to dismiss; and 4) defendant failed to meet the burden of showing sufficient privity between plaintiff and plaintiff’s PR beer distributor, and thus the the prior final judgment involving the distributor does not preclude the present action.
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March 16 – 20, 2009:

U.S. 1st Circuit Court of Appeals, March 19, 2009 Levesque v. Doocy , No. 08-1814

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March 9 – 13, 2009:

U.S. 3rd Circuit Court of Appeals, March 10, 2009 Fontroy v. Beard, No. 07-2446 In an action involving the First Amendment rights of prisoners, district court’s judgment is reversed where the defendant’s new prison mail policy requiring attorneys and courts to affix control numbers to mail sent to inmates is reasonably related to legitimate penological interests and thus does not unconstitutionally infringe on First Amendment rights, as there is a rational connection between the mail policy and the prison’s interest in prison security and safety.

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February 21 – February 27, 2009
U.S. Supreme Court, February 24, 2009 Ysursa v. Pocatello Educ. Ass’n., No. 07-869 In a First Amendment challenge to a law prohibiting public employees from making payroll deductions for political activities, summary judgment for Defendant is affirmed, where the First Amendment does not confer a right to use government payroll mechanisms for political expression.

U.S. 1st Circuit Court of Appeals, February 25, 2009 Del Gallo v. Parent, No. 08-1511
In a case involving First Amendment rights and the right to campaign on a post office sidewalk, grant of defendant’s motion for summary judgment is affirmed where: 1) the post office sidewalk is not a traditional public forum; 2) the regulation barring candidate’s election campaigning on a post office sidewalk is viewpoint neutral and reasonable to prevent abuses and to preclude any appearance of partisan endorsement or preference; and 3) there is insufficient evidence of a pattern of selective enforcement before plaintiff’s arrest, and the regulation has been consistently applied since then.

U.S. 1st Circuit Court of Appeals, February 27, 2009 Poirier v. Massachusetts Dept. of Corr. , No. 08-1290
In a civil rights action, district court’s dismissal of plaintiff’s complaint for failure to state a claim is affirmed where enforcement of a Department of Corrections rule prohibiting unauthorized personal contact with former inmates did not violate plaintiff’s constitutional right to intimate association because the rule is a rational means of promoting the legitimate government interest in prison security. District court’s dismissal of plaintiff’s suit against the DOC on sovereign immunity grounds and claim for damages is affirmed.
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