November 23-27, 2009.
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U.S. 1st Circuit Court of Appeals, November 23, 2009 Vaqueria Tres Monjitas, Inc. v. Irizarry, No. 07-2240 In plaintiffs’ suit against Puerto Rico’s Milk Industry Regulation Administration, claiming that the Administration’s regulatory scheme governing milk prices violates the Due Process, Equal Protection, Takings, and dormant Commerce Clauses, grant of a preliminary injunction enjoining the regulatory scheme is affirmed where: 1) the district court properly declined defendants’ invitation to abstain from entertaining the action; 2) the Eleventh Amendment does not bar the form of relief granted by the district court in its preliminary injunction; 3) the district court did not abuse its discretion in rejecting defendants’ unclean hands defense; 4) the district court did not abuse its discretion in failing to dismiss the action on the basis of laches; 5) the district court did not abuse its discretion in rejecting defendants’ estoppel defense; and 6) district court did not abuse its discretion in granting plaintiffs’ motion for a preliminary injunction. ..
U.S. 3rd Circuit Court of Appeals, November 24, 2009 Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist. , No. 08-3826 In plaintiff’s 42 U.S.C. section 1983 suit challenging school district’s prohibition on celebratory religious music at school-sponsored events for the purpose of maintaining a policy of complete religious neutrality, summary judgment for the school district is affirmed as the court did not err in concluding that December concerts are not public fora, and that the school district’s interpretation of the policy was reasonably related to legitimate pedagogical concerns.
U.S. 6th Circuit Court of Appeals, November 25, 2009 Entm’t Prod., Inc. v. Shelby County, Tenn. , No. 08-5494 Denial of plaintiffs’ motion for a preliminary injunction in their suit against the county challenging the constitutionality of the Tennessee Adult-Oriented Establishment Registration Act is affirmed where: 1) the district court did not err in denying the preliminary injunction on the basis that plaintiffs did not demonstrate a substantial likelihood of success in their challenges to the definitions of “adult cabaret,” “adult-oriented establishment,” and “adult entertainment”; 2) the district court did not err in holding that a vagueness challenge is not likely to succeed on the merits as a narrowing construction sufficiently clarifies the parts this Act allegedly contaminated by vagueness; 3) plaintiffs’ claim that the Act’s requirements will result in a drastic reduction in the quantity and accessibility of speech is rejected; and 4) the issue of balancing of equities is moot as the district court correctly determined that plaintiffs have not demonstrated a likelihood of s! uccess on the merits.
U.S. 6th Circuit Court of Appeals, November 25, 2009 East Brooks Books, Inc. v. Shelby County, Tenn. , No. 08-5958 In an action brought by the operator of two bookstores that sell non-obscene sexually oriented material and restrict admissions to adults only challenging Tennessee’s Adult-Oriented Establishment Registration Act, denial of a preliminary injunction is affirmed where: 1) the district court did not err in determining that plaintiff has not shown a substantial likelihood of succeeding on the merits of the challenge to the “adult bookstore” definition; 2) the district court was correct in finding no substantial likelihood of success on the merits of plaintiff’s claim that the Act punishes operators of adult establishments on the basis of strict liability; 3) the district court did not err in finding that plaintiff did not show a substantial likelihood of success on the merits of plaintiff’s challenge to the Act’s penalty provision; and 4) plaintiff’s remaining claims are rejected.
U.S. 6th Circuit Court of Appeals, November 25, 2009 Cooey v. Strickland, No. 09-4300 District court’s order staying defendant’s execution, based on preexisting litigation related to challenges to Ohio’s method of execution including challenges stemming from the State’s use of a three-drug protocol and its difficulty accessing usable veins in prior executions, is vacated as any challenge to Ohio’s three-drug execution protocol is now moot because such procedure will not be utilized on defendant, and no basis exists for continuing the stay previously in effect.
U.S. 9th Circuit Court of Appeals, November 23, 2009 Legal Aid Servs. of Or. v. Legal Servs. Corp., No. 08-35467 In a First Amendment challenge to restrictions on lobbying, soliciting clients, participating in class actions, and seeking attorneys’ fees imposed on legal aid organizations that received federal grants through the Legal Services Corporation, summary judgment for defendants is affirmed where: 1) the regulations did not discriminate against any particular viewpoint or motivating ideology; and 2) plaintiffs’ professed fear that their federal funding might be terminated was not sufficient to support an as-applied challenge.
New York Court of Appeals, November 23, 2009 Godfrey v. Spano, No. 147 In a state constitutional challenge to two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits, dismissal of the complaint is affirmed where plaintiffs failed to specify a circumstance where taxpayer funds were expended as a result of the executive order at issue that would not have been expended in the absence of the order.
New York Court of Appeals, November 23, 2009 Walton v. N.Y. State Dept. of Corr. Servs., No. 149 In an action alleging that the portion of a telephone charge for collect calls from inmates that was allocated as a commission to the department of corrections violated the New York Constitution, dismissal of the complaint is affirmed where: 1) the collection of the commission did not constitute a tax; 2) the practice was not a “taking” in the absence of government compulsion; and 3) plaintiffs failed to establish that the commission bore no reasonable relationship to legitimate penological aims.
New York Court of Appeals, November 24, 2009 Goldstein v. N.Y. State Urban Dev. Corp., No. 178 In a state constitutional challenge to an eminent domain proceeding, judgment for respondent is affirmed where: 1) it was indisputable that the removal of urban blight is a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain and 2) the creation of low income housing was not constitutionally required under article XVIII of the New York constitution as an element of a land use improvement project that did not entail substantial slum clearance.
California Appellate Districts, November 23, 2009 Hoffman St., LLC v. City of W. Hollywood, No. B210789 In plaintiffs-developers’ suit against the city challenging its extension of an interim ordinance restricting development in areas zoned for multifamily residential uses raising various statutory and constitutional claims, judgment denying plaintiffs’ petition for a writ of mandate and denying any relief on their complaint is reversed where: 1) trial court’s denial of plaintiffs’ petition for a writ of mandate as to the first count was improper as the city council failed to make findings required under Gov. Code section 65858(c) upon extending the interim ordinance and the extension therefore was contrary to law and invalid; 2) although it was improper for the trial court to deny plaintiffs’ petition on their first count, plaintiffs have not shown prejudicial error in the denial of relief on their Permit Streamlining Act claim, and a CEQA violation claim is moot; and 3) trial court’s entry of judgment on counts four through seven is reversed as plaintiffs were not afforded a! n opportunity to be heard on those counts which deprived them of their right to a fair hearing.
California Appellate Districts, November 24, 2009 City of Anaheim v. Sup. Ct., No. B216250 In proceedings arising from city’s imposition of a “transient occupancy tax” against a number of online travel companies (OTC) in the collective amount of more than $21 million, city’s petition for writ of mandate challenging the overruling of its demurrers claiming that the OTCs should abide by the “pay first” rule to challenge the tax is denied as: 1) the city cannot invoke article XIII, section 32 of the California Constitution in this case because that constitutional provision applies only to actions against the state or an officer of the state; and 2) there are no alternative legal grounds upon which the city can impose a “pay first” requirement upon the OTCs in this case.