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Week of December 15-19, 2008.
U.S. 2nd Circuit Court of Appeals, December 15, 2008 Doe, Inc. v. Mukasey, No. 074943 In litigation concerning First Amendment challenges to the constitutionality of statutes governing the issuance and judicial review of National Security Letters (NSLs) which request records from providers of wire or electronic communication services, decision finding 18 U.S.C. subsections 2709(c) and 3511(b) unconstitutional and enjoining certain actions by FBI officials is affirmed in part, reversed in part, and remanded where: 1) the statutes are construed to avoid some constitutional challenges; 2) subsections 2709(c) and 3511(b) were unconstitutional to the extent that they imposed a nondisclosure requirement on NSL recipients without placing on the Government the burden of initiating judicial review of such a requirement; 3) subsections 3511(b)(2) and (b)(3) were unconstitutional to the extent that a governmental official’s certification that disclosure may endanger the national security of the U.S. or interfere with diplomatic relations was treated as conclusive; and 4! ) district court’s injunction is modified by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review.
U.S. 4th Circuit Court of Appeals, December 18, 2008 US v. Whorley, No. 06-4288 Convictions for receipt of obscene cartoons depicting minors, receipt of actual child pornography, and receipt of obscene e-mails are unsuccessfully challenged on First Amendment grounds. Court holds that: 1) textual matter such as emails may be prohibited as “obscene” although not containing pictures; 2) statute could prohibit obscene cartoons of child pornography although cartoons did not depict real life children; 3) the interstate trafficking of obscene materials can be prohibited by law; and 4) the term “receives” is not unconstitutionally vague as applied to receipt of obscenity via computer. .
U.S. 6th Circuit Court of Appeals, December 15, 2008 Warthman v. Genoa Township Bd. of Trustees, No. 07-4528 In an action arguing that defendant-town Board of Trustees violated the Ohio Open Meetings Law when it terminated plaintiff’s employment without allowing her to respond to the allegations against her at a public hearing, a decision remanding the case to state court after it had been previously removed, but denying plaintiff fees and costs, is vacated as to the denial of fees and costs where the lower court applied the incorrect legal standard to the fees request, and the basis for defendants’ removal was not “objectively reasonable” under the circumstances.
U.S. 6th Circuit Court of Appeals, December 18, 2008 Adrian & Blissfield R.R. Co. v. Vill. of Blissfield, No. 07-1664 District court erred in finding that the Interstate Commerce Commission Termination Act preempts Mich. Comp. Laws section 462.309, which requires a Railroad to pay for the installation and upkeep of sidewalks and pedestrian crossings that abut and cross its property. The state law is not unreasonably burdensome, and because it addresses a general state concern about the safety of pedestrians it does not discriminate against railroads. .
U.S. 10th Circuit Court of Appeals, December 12, 2008 Quik Payday, Inc. v. Stork, No. 07-3289 In a case brought by a company that utilizes the Internet in making short-term loans, a district court’s decision rejecting its constitutional dormant Commerce Clause challenge to the application of Kansas’s consumer-lending statute to those loans is affirmed where: 1) the statute at issue, as interpreted by state officials charged with its enforcement, does not regulate extraterritorial conduct; 2) the circuit court’s precedent shows that the statute’s burden on interstate commerce does not exceed the benefit that it confers; and 3) the circuit court rejects a claim that imposing Kansas requirements when Internet commerce demands nationally uniform regulation is unconstitutional.
U.S. 10th Circuit Court of Appeals, December 18, 2008 Yes on Term Limits, Inc. v. Savage, No. 07-6233 In a 42 U.S.C. section 1983 action challenging the validity of Oklahoma’s ban on non-resident petition circulators under the constitutional First Amendment, Privileges and Immunities Clause, and Commerce Clause, a judgment against plaintiffs is reversed where the ban on nonresident circulators does not survive strict scrutiny analysis because it is not sufficiently tailored to further Oklahoma’s compelling interest in protecting and policing both the integrity and the reliability of its initiative process. .
U.S. 11th Circuit Court of Appeals, December 19, 2008 US v. Horsefall, No. 0810739 In a per curiam decision, sentence of 327 months for receiving child pornography is affirmed over claims that: 1) the government breached the plea agreement by recommending an upward departure; 2) the court erred by imposing an upward departure under the Sentencing Guidelines; and 3) the court violated defendant’s Eighth Amendment rights by considering victim impact evidence at sentencing. .
U.S. D.C. Circuit Court of Appeals, December 16, 2008 Braintree Elec. Light Dep’t v. Fed. Energy Regulatory Comm’n, No. 04-1335, 05-1210, 05-1212 Federal Energy Regulatory Commission’s approval of rates charged by a Regional Transmission Organization that covered the cost of certain activities that may include lobbying did not violate the First Amendment rights of the member power utility companies who were forced to pay those costs. The Commission’s approval of those rates was neither arbitrary nor capricious. .
Illinois Supreme Court, December 18, 2008 Morr-Fitz, Inc. v. Blagojevich, No. 104692 In a declaratory judgment action brought by two pharmacists and three corporations against various Illinois public officials and the State Board of Pharmacy seeking to invalidate an administrative rule that forces pharmacies to dispense Plan B contraception, dismissal of the action is reversed where, contrary to the ruling below, the action was ripe for judicial review and should not have been dismissed.
California Appellate Districts, December 16, 2008 Arcadia Dev. Co. v. City of Morgan Hill, No. H032201 In a challenge to a 10-year extension of ordinance drastically restricting development of certain property within city limits (the Density Restriction) on equal protection and takings grounds, dismissal of action is reversed where: 1) under the circumstances of this case, the measure extending the Density Restriction for 10 years gave rise to a new cause of action; and thus, 2) plaintiff’s lawsuit was timely.