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Legal news from Tuesday, April 28, 2009




Supreme Court hears arguments in IDEA, federal banking regulation cases
Jaclyn Belczyk on April 28, 2009 3:33 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Tuesday in two cases. In Forest Grove School District v. T.A. [oral arguments transcript, PDF; JURIST report], the Court will consider whether the Individuals with Disabilities Education Act (IDEA) [text] permits a tuition reimbursement award against a school district and in favor of parents who unilaterally place their child in private school, where the child had not previously received special education and related services under the authority of a public agency. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that such reimbursement is not barred. Counsel for the school district argued, "[t]he 1997 amendments to IDEA prohibit tuition reimbursement awards for students who are unilaterally placed in private school without first having received special education services from the public school district. This is so under ordinary principles of statutory construction..." Counsel for the respondent argued:

The school district in this case improperly denied T.A., a child with a disability who had always been enrolled in public schools, access to all public special education services. It asserts that because its wrong eligibility determinations prevented T.A. from receiving special education services, it is immune from reimbursing T.A.'s parents the cost of obtaining those services from another source.
The Court also heard arguments in Cuomo v. Clearing House Association [oral arguments transcript, PDF; JURIST report], in which it will consider whether the New York state attorney general is permitted to take certain measures to enforce state fair lending law against national banks by subjecting those entities to "visitorial powers" under the National Bank Act (NBA) [12 USC § 484(a) text] and 12 CFR § 7.4000 [text]. The regulation was issued by the Office of the Comptroller of Currency (OCC) [official website], interpreting § 484(a) to preempt state enforcement of state laws against national banks. The US Court of Appeals for the Second Circuit held [opinion, PDF] that the attorney general's actions were not permitted. Counsel for the attorney general argued:
Under the OCC regulation at issue here, State anti-discrimination and consumer protection laws can be enforced against national banks by the Federal OCC and by private parties, but not by State attorneys general. This unusual enforcement preemption, which detaches the State's power to make laws from its power to enforce them, was not written into the National Bank Act by Congress in 1864, and it's implausible that Congress implicitly delegated to OCC the power to read it in now.
Counsel for respondent Clearing House Association argued that "[s]ection 484 plainly has preemptive effect."

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Europe court rules for Greek Cypriot in Northern Cyprus land ownership dispute
Adrienne Lester on April 28, 2009 2:58 PM ET

[JURIST] The European Court of Justice (ECJ) [official website] ruled [press release, PDF; case materials] Tuesday that a judgment by a southern Cyprus court favoring a Greek Cypriot reclaiming land in the north is enforceable despite the south's lack of control over that region. Meletis Apostolides, a Cypriot national whose family was forced from land in the north during the partition of the island, brought suit against a British couple who had purchased the land from a third party to build a vacation home. The ECJ determined Apostolides to be the rightful owner of the land, which will likely lead to additional legal claims by similarly situated Greek Cypriots. In turn, this could increase opposition to reunification [BBC report] by Turkish Cypriots.

Tensions between ethnic Turks and Greeks in Cyprus [JURIST news archive] have long been high. Cyprus split into two areas, the Greek controlled south and the Turkish controlled north [TRNC website], when Turkey invaded the island in 1974 to quell a coup by supporters of a union with Greece. Attempts to reunite the island have thus far been unsuccessful. In 2004, Turkish and Greek negotiators failed to agree [JURIST report] on a plan to reunify Cyprus ahead of its entry into the EU. Despite the failure, Cyprus was one of 10 new members that joined the EU in May 2004 [EU enlargement website]. Currently, northern Cyprus is self-governed, the region is occupied by the Turkish army, and it is not recognized internationally.

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Vote for JURIST in the 2009 Webby Awards!
Jaclyn Belczyk on April 28, 2009 2:50 PM ET

[JURIST] JURIST has been nominated in New York for a prestigious Webby Award as the best Law website of 2009. By virtue of being a nominee, JURIST is eligible for the Webby People's Voice award in addition to the judge's award. We hope you'll support JURIST and our staff of dedicated law students by voting for us! Polls close Thursday, April 30.

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UK jury acquits men accused in 2005 London transit bombings
Amelia Mathias on April 28, 2009 2:49 PM ET

[JURIST] A UK jury acquitted Tuesday three alleged conspirators to the July 7, 2005 bombings in London [BBC backgrounder]. Mohammed Shakil, Waheed Ali, and Sadeer Saleem were found not guilty [BBC report] of being privy to the conspiracy during a retrial after a mistrial was declared last fall when the jury could not reach a verdict. The three men were the only ones on trial for the attacks, despite evidence that pointed to the involvement of a larger group than just those who carried out the attacks. All three took a trip to London in December 2004 with two of the suicide bombers to visit a relative of Ali, where they visited tourist spots. The trip was seen as a likely scouting trip for the eventual attacks. Shakil and Ali were found guilty of attending a terrorist-training camp [MPS press release] in Malakand, Pakistan, where both knew Mohammad Siddique Khan, the orchestrator of the attacks. Attending a terrorist camp was made illegal under the Terrorist Act of 2006. Shakil and Ali will be sentenced Wednesday.

The three men were arrested in May 2007 and pleaded not guilty [JURIST reports] that August. The attacks of July 7, 2005, caused the deaths of 52 people when suicide bombers unleashed themselves on the public transit system in London at the height of the morning rush hour. The attacks were traced back to a tight-knit group who attended a mosque in Leeds, where Shakil, Ali, and Saleem also worshiped. Al Qaeda claimed responsibility [JURIST report] for the attacks two months later.

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Madagascar soldiers raid high court to arrest supporters of ousted president
Jaclyn Belczyk on April 28, 2009 2:12 PM ET

[JURIST] Armed soldiers raided Madagascar's High Constitutional Court [official website, in French] Monday evening, arresting head of security Andrianandraina Ralitera and three other court employees. The four arrested men [L'Express report, in French], supporters of ousted president Marc Ravalomanana [BBC profile] are accused [Xinhua report] of inciting public disorder and ordering soldiers to open fire on protesters in February, resulting in the deaths of 28 [BBC report]. Journalists were later permitted into the court and shown weapons that had allegedly been stockpiled [BBC report] there.


Last month, the Constitutional Court accepted the military's decision to install [JURIST report] Andry Rajoelina [Reuters profile] as the country's new president, one day after Ravalomanana's resignation. The court approved the presidency of 34-year-old Rajoelina despite a requirement in Madagascar's constitution [text, PDF] that the president be at least 40 years of age, declaring that his presidency would be legal for a maximum two-year term [China Daily report]. Ravalomanana passed control of the government to the military after months of violence in hopes it would run the nation under a military directorate. The military subsequently passed power to Rajoelina, a former mayor of Madagascar's capital city of Antananarivo who had led protests against Ravalomanana's government. Rajoelina was fired as mayor of Antananarivo [BBC report] in late January following his declaration that he was in charge of Madagascar and his failed efforts to impeach Ravalomanana. Much of the public unrest stemmed from criticisms that Ravalomanana failed to alleviate poverty, as well as his unpopular decision to shut down a television station [BBC report] owned by Rajoelina after the station aired an interview with one of Ravalomanana's former adversaries.

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UK government publishes controversial bill outlawing various forms of discrimination
Jaclyn Belczyk on April 28, 2009 12:42 PM ET

[JURIST] The UK Government Equalities Office (GEO) [official website] on Monday published [press release] a controversial Equality Bill [materials] that seeks to eliminate gender, racial, age, and other forms of discrimination. The bill, which was introduced into the House of Commons [official website] Friday, would require businesses to report on pay for men and women, outlaw age discrimination, and synthesize various other pieces of anti-discrimination laws into a single piece of legislation. Minister for Women and Equality Harriet Harman [official profile] said:

The Equality Bill is part of building a strong fair future for Britain out of the downturn. That means fairness and opportunity. Especially in tougher economic times, we need to face the problems fairly and we need to look for a fairer future. ... Though we have ensured new rights and opportunities for disabled people, for women, black and Asian people and older people – there is still unfairness and discrimination to tackle. And this Bill will take the action necessary to tackle it.
The bill has the support of many members of the ruling Labour Party, but has already been condemned [BBC report] by Conservative lawmakers as well as businesses. Director General of the British Chambers of Commerce [official website] David Frost said [press release], "This Bill will discourage job creation and make employers fearful of the recruitment process. We already know that half of small firms struggle to navigate employment law and this will just add to the problem."

The bill was initially proposed [JURIST report] in June. The UK has made increased efforts to combat discrimination in recent years. In January 2007, then-prime minister Tony Blair announced [JURIST report] that rules under a 2006 Equality Act protecting the rights of same-sex couples to adopt children [JURIST report] will apply without exception, denying special exemptions for faith-based adoption agencies opposed to same-sex unions or homosexuality. In October 2006, an official at the UK Commission for Racial Equality [official website] warned [JURIST report] that if communication about social differences does not improve in Britain, riots could erupt there in the wake of a religious dress [JURIST news archive] debate prompted by the suspension of a Muslim UK teacher for wearing a full-face veil in the classroom.

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Supreme Court upholds FCC ban on isolated expletives
Jaclyn Belczyk on April 28, 2009 11:04 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] Tuesday ruled [opinion, PDF] 5-4 in FCC v. Fox Television Stations [Cornell LII backgrounder; JURIST report] that the Federal Communications Commission (FCC) [official website] did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. In 2004 the FCC changed its longstanding policy, saying that it would no longer permit the use of isolated expletives on the air. The FCC issued a 2006 order stressing the ban on such one-time violations. Fox Television Stations, along with other broadcasters, brought a petition for review of the FCC order before the US Court of Appeals for the Second Circuit, which ruled [opinion, PDF] that the new policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy, vacating the FCC order. In a narrow ruling reversing the lower court decision, Justice Antonin Scalia wrote:

The Second Circuit believed that children today "likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech," and that this cuts against more stringent regulation of broadcasts. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission's policy choices and not with the explanation it has given. We decline to "substitute [our] judgment for that of the agency," and we find the Commission's orders neither arbitrary nor capricious.
The Court did not rule on constitutional questions, leaving that issue open. Justices John Paul Stevens and Ruth Bader Ginsburg filed dissenting opinions, and Justice Stephen Breyer filed a dissenting opinion in which Stevens, Ginsburg, and Justice David Souter joined.

The Court also ruled [opinion, PDF] 7-2 in Cone v. Bell [Cornell LII backgrounder; JURIST report] that a federal habeas court has the power to recognize that a state court erred in holding that state law precludes reviewing a claim and that a federal habeas claim is not "procedurally defaulted" because it has been presented twice to the state court. The case was brought by a Tennessee death row inmate who alleges that authorities hid mitigating evidence during his murder trial. The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] against the petitioner Cone, finding "If the state court decides the petitioner's claims on an adequate and independent state ground, such as a state procedural rule, the petitioner's claims are considered procedurally defaulted and he is barred from seeking federal habeas relief." In vacating the lower court ruling and remanding, Stevens wrote:
After a complete review of the trial and postconviction proceedings, we conclude that the Tennessee courts' rejection of petitioner's Brady claim does not rest on a ground that bars federal review. Furthermore, although the District Court and the Court of Appeals passed briefly on the merits of Cone’s claim, neither court distinguished the materiality of the suppressed evidence with respect to Cone's guilt from the materiality of the evidence with respect to his punishment. While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state, the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.
Justice Clarence Thomas filed a dissenting opinion, joined by Scalia.

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Canada commission concludes Afghan detainees not abused in custody
Jaclyn Belczyk on April 28, 2009 10:08 AM ET

[JURIST] The Canadian Military Police Complaints Commission (MPCC) [official website] released a report [text, PDF] Monday concluding that three Afghan detainees were not mistreated [press release] while in Canadian military police custody in Kandahar in 2006. The probe began following a civilian complaint filed by University of Ottawa law professor Amir Attaran [faculty profile], whose research uncovered a pattern of suspicious injuries on three detainees captured in April 2006 and later released. The MPCC found:

that the allegation of inhumane treatment of the detainees by military police members is not substantiated in that: no harm was caused to the detainees by any acts or omissions on the part of the military police; and, the detainees were afforded prompt and appropriate medical care while in military police custody.
The report also found that the military police failed to investigate the cause of a head injury to one of the detainees and that they should have done so. The report recommends further study on the role of military police and more comprehensive training and research.

The Canadian government ordered the inquiry [JURIST report] in February 2007. Monday's report dealt only with allegations by Attaran. There are ongoing investigations into complaints [JURIST report] filed by Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) [advocacy websites]. Following public outcry, Canada signed a new agreement regarding detainee transfers [JURIST report] with the Afghan government in May 2007, giving Canada the right to inspect detainees following their transfer.

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Federal court begins trial of ex-soldier accused in Mahmudiya murder-rape case
Jaclyn Belczyk on April 28, 2009 9:15 AM ET

[JURIST] The federal trial of a former US soldier accused of raping and killing a 14-year-old Iraqi girl [JURIST news archive] in 2006 began Monday. Former US Army Pfc. Steven Green [JURIST news archive] is also charged with killing the girl's family in Mahmudiya, Iraq. During Monday's opening statements, prosecutors said [AP report] that Green raped the girl, shot her several times, and then burned her body and that he later bragged about the events. Green's defense lawyer argued [Reuters report] that Green was under extreme stress from combat conditions. Green could face the death penalty if convicted.

Green is being tried as a civilian because he was honorably discharged pursuant to a psychiatric disorder diagnosis [JURIST report] made before the Army learned of the Mahmudiya incident. Green's lawyers had previously indicated that they were considering raising an insanity defense [JURIST report]. Four soldiers [JURIST report] from the 101st Airborne Division have already been convicted in military court for crimes stemming from the Mahmudiya incident. Spc. James Barker and Sgt. Paul Cortez [JURIST reports] received prison sentences of 90 and 100 years respectively after they pleaded guilty to participating in the attack. Pfc. Bryan Howard, who stayed at the soldiers' checkpoint but had prior knowledge of the plan, was sentenced to 27 months after pleading guilty [JURIST report] in March 2007 to conspiracy to commit rape and premeditated murder and conspiracy to obstruct justice. Pfc. Jesse Spielman was sentenced to 110 years in prison after being convicted [JURIST report] in August 2007 of four counts of felony murder, rape, conspiracy to commit rape, and housebreaking with intent to commit rape. All four will be eligible for parole in 10 years.

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US releases human rights pledges in anticipation of UN council vote
Amelia Mathias on April 28, 2009 8:59 AM ET

[JURIST] The US State Department [official website] released [press release] Monday its commitments and pledges [text; PDF] as part of its campaign to gain a seat on the UN Human Rights Council (UNHRC) [official website]. All countries attempting to be elected to the body, which holds elections every year for three-year terms, are invited to outline their national commitments to human rights and how they will further those goals internationally through the UNHRC. The US pledge, which is voluntary, contains the following commitments:

1. Commitment to advancing human rights in the UN system;

2. Commitment to continue support to human rights activities in the UN system;

3. Commitment to advancing human rights, fundamental freedoms and human dignity and prosperity internationally; and

4. Commitment to advancing human rights and fundamental freedoms in the United States.
The pledge also contains monetary commitments to be made to the UN in furtherance of its human rights goals. The US has never before sought a seat on the UNHRC. Other countries likely to gain posts on the council are China, Saudi Arabia, Russia, and Cuba. Of those, only Cuba released a pledge [CNS report]. The voting, which is mostly a formality due to the lack of competition [official candidate list] in most regions besides Eastern Europe, will take place May 12.

The US announced its intent to seek a seat on the council [JURIST report] in early April, hoping to affect more change by working from inside the council than by boycotting the effort. The UNHRC was created [JURIST report] in 2006, at which time the Bush administration declined to seek a Council seat or participate in its proceedings. In February, human rights groups and politicians criticized the Obama administration for apparently continuing the Bush policy, after the State Department remained silent [JURIST report] during the most recent UNHRC universal periodic review (UPR) [materials]. State Department spokesperson Robert Wood defended the delegates' silence, saying that the US was not actively participating because the Obama administration was still deciding how it wanted to interact with the Council. Wood said that the US had representatives attending and monitoring the UPR sessions, and that its abstention from the reviews did not mean that human rights were not a priority for the administration.

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EPA to review Bush administration coal power plant emissions rules
Andrew Gilmore on April 28, 2009 8:48 AM ET

[JURIST] The US Environmental Protection Agency (EPA) [official website] announced Monday that it would review three new source review rules [EPA press release] that regulate emissions from coal power plants. The announcement comes as the EPA has stepped up its efforts to regulate greenhouse gases and other atmospheric pollutants. The rules in question were promulgated during the administration of former president George W. Bush, and were seen by many as creating loopholes [Reuters report] for coal power plants to escape regulation under the Clean Air Act [text, PDF]. The new source review rules determine when and how power plants are required to account for air emissions that are not released through a stack, vent or other confined air stream, keep records on emissions, and account for air emissions associated with fine particle pollution when obtaining a permit. The EPA's announcement comes the same day as Secretary of the Interior Ken Salazar announced his determination [DOI press release] that a rule facilitating mountaintop-stripping coal mining practices is "legally deficient," and directed the US Department of Justice (DOJ) [official website] to file a pleading with the US District Court for the District of Columbia challenging the rule. Environmental groups expressed surprise at the unexpected determination [AP report] condemning the rule, which was passed by Bush in the waning days of his presidency. In remarks announcing the determination, Salazar said [text, PDF]:

The so-called "stream buffer zone rule" from the previous Administration ... just doesn’t pass muster. ... [T]his type of 11th hour rule – issued a little over a month before the previous Administration passed office – does not adequately protect our waterways and our communities. And it just doesn’t pass the smell test.
The EPA has recently taken several steps to reverse environmental policies from the Bush administration. Earlier this month, the EPA announced a proposed finding [report, PDF; JURIST report] that atmospheric greenhouse gases endanger public health and welfare, setting the stage for government regulation of the harmful gases for the first time. Last month, the EPA held a hearing [JURIST report] to reconsider California's request to regulate automobile greenhouse gases. The request had been denied by the EPA during the Bush administration. In July, a US House of Representatives report revealed that the Bush administration abandoned plans to use the Clean Air Act to regulate greenhouse gases on power plants and other stationary pollution sources after opposition from the oil industry [JURIST report]. In April 2007, the US Supreme Court ruled that the EPA had the authority [JURIST report] under the Clean Air Act to regulate the emission of greenhouse gases by automobiles.

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UK reiterates willingness to consider US request to accept Guantanamo detainees
Andrew Gilmore on April 28, 2009 7:39 AM ET

[JURIST] UK Justice Minister Jack Straw [official profile] said Monday that his country would still be willing to consider a US request to take in terrorism detainees held by at the Guantanamo Bay [JURIST news archive] detention center, if doing so would aid in the closure of the facility. Speaking at a meeting with his US counterpart, Attorney General Eric Holder [official profile], Straw said that the UK would consider any request [Daily Mail report] made by the administration of US President Barack Obama [official profile] to take in Guantanamo detainees, in order to support Obama's decision to close [executive order; JURIST report] the controversial facility. However, Holder said that no such request [AP report] has been made.

Obama's order directed that the military prison be closed "as soon as practicable, and no later than 1 year from the date of this order." The order did not specify where detainees would go upon release, but did call for diplomatic efforts with foreign states in order to facilitate the closure of the facility. Earlier this month, France agreed [JURIST report] to accept one Guantanamo detainee. Last month, top officials from the Obama administration met with leaders from the European Union (EU) [official website] to discuss plans to transfer [JURIST report] Guantanamo Bay detainees to European countries. Individual member states have also indicated their openness to accepting detainees, including Lithuania, Ireland, Germany, and Portugal [JURIST reports]. Other states have expressed reservations about accepting detainees, including Poland and Spain, while Italy [JURIST reports] and the Netherlands [AFP report] have said they will not accept detainees. In January it was reported that the British government was preparing to take in Guantanamo detainees [JURIST report] after officials said in December that they might be wililng to consider detainees on a case by case basis.

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