Findlaw: Weekly Opinion Summaries, Constitutional Law September 26, 2008

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U.S. 1st Circuit Court of Appeals, September 23, 2008 Welch v. Campia, No. 072470 In a lawsuit filed against the Chief of Police and the Town on the grounds that defendants impermissibly retaliated against plaintiff for exercising his First Amendment rights, grant of summary judgment in favor of defendants is reversed in part and affirmed in part where: 1) plaintiff’s non-reappointment constituted an adverse employment action sufficient to support a section 1983 claim; 2) district court properly granted summary judgment in favor of co-defendants because defendant was the only one with the appointment authority; 3) plaintiff failed to explain how defendants’ actions resulted in unreasonably inferior work conditions; 4) defendants’ argument that plaintiff’s First Amendment claim failed; 5) the district court erred in placing the burden on plaintiff to show that the reasons articulated by defendant were pretextual; 6) liability can be imposed for defendant’s decision not to reappoint plaintiff; 7) plaintiff’s whistleblower claims survived since there was a q! uestion as to whether he was not reappointed because of his involvement in the grand jury investigation; and 8) district court erred in concluding that plaintiff could not maintain an action for interference with advantageous relations.

U.S. 1st Circuit Court of Appeals, September 24, 2008 Thomas v. State of Rhode Island, No. 071985 In a suit brought by members of an Indian tribe claiming that state officials violated their constitutional rights by arresting them without lawful authority on tribal lands for alleged cigarette tax violations, dismissal of action for failure to state a claim is affirmed over claims of error that: 1) the court construed their allegations too narrowly, thereby ignoring a viable Fourth Amendment claim based on the lack of probable cause for arrest; and 2) the court wrongly denied their request to amend the complaint, thereby denying them the opportunity to remedy any tax deficiencies.

U.S. 9th Circuit Court of Appeals, September 22, 2008 Barrett v. Belleque, No. 06-35667 In a First Amendment case regarding punishment of an Oregon state prisoner for writing letters vulgarly describing prison officials, dismissal of plaintiff’s section 1983 claim is reversed and remanded where: 1) censorship of prisoner mail is justified only if the regulation furthers a substantial governmental interest unrelated to the suppression of expression and the limitation on expression is no greater than necessary to the protection of the particular governmental interest involved; 2) plaintiff properly pleaded that he was punished for the content of his letters; and 3) the district court erroneously relied on case law concerning prisoner to prisoner communications.

U.S. 9th Circuit Court of Appeals, September 24, 2008 US v. McCalla, No. 07-50162 In a case challenging the constitutionality of federal child pornography laws applied to intrastate production of child pornography, denial of motions to dismiss is affirmed where there is a rational basis to believe that homegrown production of child pornography, even absent evidence of a commercial intent, would affect interstate commerce. ..

U.S. 9th Circuit Court of Appeals, September 25, 2008 CarePartners LLC v. Lashway, No. 07-35125 In an action alleging constitutional violations by state regulators of boarding homes, denial of defendants’ motion for summary judgment based on qualified immunity is affirmed where: 1) plaintiff made an initial showing that its constitutionally protected speech activity was a substantial or motivating factor in defendant’s regulatory decision; 2) defendants failed to show that the constitutional rights at issue were not clearly established; and 3) the public concern requirement and Pickering balancing test do not apply to First Amendment retaliation claims in the regulated entity context.

U.S. 9th Circuit Court of Appeals, September 26, 2008 Lazy Y Ranch v. Beherns, No. 07-35315 In an equal protection case arising out of a dispute over an auction for Idaho grazing lands, denial of defendants’ motion to dismiss is affirmed where: 1) the Court had jurisdiction over the interlocutory appeal due to defendants’ claim of qualified immunity; 2) defendant adequately pled an equal protection claim under section 1983 by alleging disparate treatment due to status as a non-conservationist for which defendants put forth no rational basis; and 3) defendants had no qualified immunity because plaintiff adequately pled that defendants violated a constitutional right and that right was clearly established.

U.S. Fed. Circuit Court of Appeals, September 25, 2008 Casitas Muni. Water Dist. v. US, No. 2007-5153 In a suit alleging breach of contract and a taking by the government in connection with the financing of a water-supply project, summary judgment in favor of the government is affirmed in part, reversed in part, and remanded where: 1) under the terms of the contract, construction of a fish ladder was a maintenance and operational cost rather than a construction cost, and defendant was not obligated to pay for it; 2) defendant’s breach of a portion of the contract guaranteeing perpetual water-use rights to plaintiff was a sovereign act and did not give rise to any liability; but 3) defendant’s taking of a portion of plaintiff’s exclusive water-use right was a physical taking, not a regulatory one, requiring new analysis on remand.

California Appellate Districts, September 25, 2008 Hernandez v. County of Los Angeles, No. B203097 In a matter involving a post-election challenge to Measure R, denial of a petition for writ of mandate is affirmed where the single subject rule does not apply to a city council sponsored ballot measure such as Measure .

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