Findlaw Summaries: Constitutional Law October 20-24, 2008

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U.S. 6th Circuit Court of Appeals, October 24, 2008 Jelovsek v. Bredesen, No. 07-5443, 07-5524 In a case involving whether certain Tennessee laws governing the wine industry violate the dormant commerce clause of the Constitution, a judgment upholding the laws is affirmed in part, and vacated in part where: 1) upholding a Tennessee law banning the direct shipment of alcoholic beverages to consumers, including wine, was proper; but 2) Tennessee’s Grape and Wine Law is discriminatory on its face; and 3) a remand was required in order to fashion an adequate remedy and to allow in-state wineries an opportunity to intervene.

U.S. 9th Circuit Court of Appeals, October 20, 2008 Porter v. Osborn, No. 07-35974 In the case of a roadside killing of a man by an Alaska State Trooper, denial of summary judgment for the state trooper on grounds of qualified immunity is reversed and remanded for reconsideration where to “shock the conscience” by actions stripping an officer of qualified immunity, the officer must act with a purpose to harm unrelated to law enforcement, rather than act with only deliberate indifference.

U.S. 9th Circuit Court of Appeals, October 20, 2008 US v. Schales, No. 07-10288 A child pornography case is remanded to the district court with order to vacate either the conviction for receiving child pornography in violations of 18 U.S.C. section 2252(a)(2), or the conviction for possessing child pornography in violation of 18 U.S.C. section 2252(a)(4)(B), due to violation of the Double Jeopardy Clause where: 1) possession of child pornography is a lesser included offense within receipt of child pornography; and 2) convictions on the two counts were based on the same conduct.

U.S. 9th Circuit Court of Appeals, October 24, 2008 Balam-Chuc v. Mukasey, No. 06-72887 In an immigration case, petition for relief from a removal order is denied where: 1) all aliens present in the U.S. on the date of enactment of the Immigration and Nationality Act (INA) had a deadline of April 30, 2001 to apply for adjustment of status under section 245(i) of the INA, which allows procedural benefits to spouses and minor children of lawful permanent residents; 2) INA section 245(i) is a statute of repose, thus not subject to equitable tolling for a claim of ineffective assistance of counsel; and 3) failure by petitioner’s counsel to file petitioner’s application on time did not implicate the Fifth Amendment because it did not affect the fundamental fairness of any ongoing hearing.

U.S. 10th Circuit Court of Appeals, October 21, 2008 Weigel v. Broad, No. 05-8094, 05-8102 In an action against defendants-Wyoming highway patrol officers and their supervisor claiming failure to train and excessive force under 42 U.S.C. section 1983 and state negligence law, summary judgment for defendants on the section 1983 claims is reversed where defendants were not entitled to qualified immunity as: 1) there was evidence that for three minutes troopers subjected decedent to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death, constituting unreasonable use of force under the Fourth Amendment; and 2) the law they violated was clearly established at the time of the incident.

U.S. 11th Circuit Court of Appeals, October 21, 2008 Nguyen v. US, No. 0712874 In a claim for false arrest, false imprisonment and malicious prosecution, dismissal is reversed where: 1) under the Federal Tort Claims Act, Congress waived sovereign immunity as to specified claims, including false imprisonment, false arrest, and malicious prosecution arising out of acts or omissions, including discretionary function ones, of federal investigative or law enforcement officers; and 2) the district court should not have granted the government’s motion to dismiss on sovereign immunity grounds.

Supreme Court of Florida, October 23, 2008 Murray v. Mariner Health, No. SC07-244 In a workers’ compensation case, a constitutional challenge to the statute governing awards of attorney fees in such cases is decided on non-constitutional grounds, fee award is quashed and case remanded where: 1) under the plain language of the relevant statute, a claimant entitled to recover fees is entitled to recover a “reasonable attorney’s fee,” a term not defined by the statute; and 2) the court’s prior decision in Lee Eng’g and Constr. Co. v. Fellows, 209 So. 2d 454, 458 (Fla. 1968) was therefore the controlling law on determination of such fees.

California Appellate Districts, October 20, 2008 Widders v. Furchtenicht, No. B196583 In an election matter concerning two ballot initiatives submitted by defendant relating to chain stores and affordable housing, grant of defendant’s demurrer is reversed, defendant’s anti-strategic lawsuit against public participation (SLAPP) motion is denied, and the trial court is directed to enter judgment in favor of plaintiff-city attorney where: 1) the action was timely filed; and 2) the action did not qualify as a SLAPP suit because plaintiff demonstrated that he was entitled to judgment in his favor as a matter of law.

California Appellate Districts, October 21, 2008 Defend Bayview Hunters Point Comm. v. City & County of San Francisco, No. A119061 Denial of plaintiff’s petition for writ of mandate and complaint for injunctive and declaratory relief are affirmed where: 1) plaintiff’s petition to force a citywide referendum on a local ordinance did not comply either technically or substantially with Elections Code section 9238; 2) section 9238 as construed by the trial court does not burden free speech; and 3) plaintiff failed to affirmatively show that a clerk committed error by providing plaintiff with a copy of the ordinance and certifying it as “a full, true and correct copy of the original on file”.

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