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Cases
Source:
Westlawinternational.com
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Civil Rights: Prison's policy against obscene publications was
unconstitutional.
A West
Virginia prison's policy prohibiting inmates from receiving or possessing
obscene materials, which had been applied to purge nearly 21% of the
prison's library, was found to be unconstitutional and ordered to be
amended, because the policy was not reasonably related to a legitimate
penological interest. The policy was irrational since it banned materials
containing even one depiction of sexual intercourse regardless of any literary
value they might have, and had been interpreted to ban such books as
Sophie's Choice and works by John Updike, while allowing certain commercial
pornography such as Playboy magazine.
Cline
v. Fox
§
Insurance: A property insurer could not bring a subrogation
claim against the tenant.
Absent an
express agreement to the contrary in a lease, a tenant and landlord are
implied coinsureds under the landlord's fire insurance policy, and the
landlord's liability insurer is precluded from bringing a subrogation action
against the negligent tenant. In this case, the lease did not contain such
an express agreement and the subrogation claim was not allowed.
Tri-Par
Investments, L.L.C. v. Sousa
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Criminal Justice: Photographic lineup showed to witnesses was
not impermissibly suggestive in murder prosecution.
The
photographic lineup that police showed to witnesses in a murder prosecution
was not impermissibly suggestive. Although defendant's skin color was the
darkest among the six men in the photographs, the photographs clearly
indicated that they were taken in different lighting conditions, the men in
the photo array were similar enough to defendant in various aspects that
defendant's photograph did not stand out in a fashion that suggested he was
the person suspected by the police, and defense counsel clearly presented
the issues of accuracy of the witnesses' identification to the jury.
People
v. Shabazz
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Criminal Justice: District of Columbia's Sex Offender
Registration Act did not violate substantive due process.
The
District of Columbia's Sex Offender Registration Act did not violate
principles of substantive due process. The Act did not infringe any
fundamental rights or liberty interests of persons who committed sex
offenses before it was enacted or who were acquitted of sex offenses by
reason of insanity, even though the requirements of registration,
verification, and updating imposed a burden and may have been irksome.
Further, the Act was rationally related to a legitimate governmental goal
of protecting the community from recidivist sexual offender.
In
re W.M.
§
Family Law: Statute prohibiting partial-birth abortions lacked
required exception for mother's health.
A federal
district court ruled that the Partial-Birth Abortion Ban Act of 2003, which
banned the use of the intact D & E abortion procedure, was
unconstitutional because it posed an undue burden on a woman's right to
choose an abortion prior to viability of the fetus, failed to clearly
define the prohibited medical procedures, and lacked the required exception
for the health of the mother. Ambiguity in some terms used in the Act
deprived physicians of fair notice as to what actions were prohibited, and
there was significant medical authority to support the proposition that in
some circumstances intact D & E was the safest procedure for mothers.
Planned
Parenthood Federation of America v. Ashcroft
§
Government: Inmate's allegations of transfer based upon
inaccurate records stated cause of action under Privacy Act.
The Eleventh
Circuit adopted the Ninth Circuit's formulation for stating a claim under
the Privacy Act. Under that formulation, the allegations of an inmate's
complaint, that the Bureau of Prisons (BOP) willfully and intentionally
transferred him pursuant to inaccurate prison records, and thus abridged
his First Amendment right to petition, stated a cause of action. The
Eleventh Circuit noted that the Tenth and District of Columbia Circuits
have also followed the Ninth Circuit's formulation, but the Sixth Circuit has
not.
Perry
v. Bureau Of Prisons
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Immigration: Under transitional IIRIRA rules, voluntary
departure time was stayed by filing petition for review.
In cases
governed by the transitional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), the time allotted by the Board of Immigration
Appeals (BIA) for an alien to voluntarily depart from the United States
does not begin to run until the Court of Appeals' final disposition of the
alien's petition for review of the removal decision. If the voluntary
departure period were not stayed in such a situation, the alien would face
a Hobson's choice of either forfeiting the rights conditioned upon timely
departure by remaining in the United States to pursue a petition for
review, or forfeiting the right to petition for review by leaving the
country in a timely manner. Requiring such a choice was unacceptable.
Elian
v. Ashcroft
§
Torts: Primary assumption of risk doctrine precluded
negligence action based on use of personal watercraft.
The
doctrine of primary assumption of risk applied in a negligence action
arising from injuries sustained from the use of a Sea-Doo personal
watercraft, notwithstanding legislation pertaining to the regulation and
use of personal watercraft. Such statutory provisions did not abrogate,
supersede, or displace the primary assumption of risk doctrine in the
absence of an explicit and unambiguous intent on the part of the
legislative authority to do so.
Peart
v. Ferro
§
Criminal Justice: Billion dollar bail was unconstitutionally
excessive.
Bail
amounts set at one billion dollars as to each of three charges against a
petitioner, who sought writs of habeas corpus, were unconstitutionally
excessive, even though the petitioner's past history demonstrated a clear
flight risk, and the petitioner's family possessed tremendous wealth. The
offenses involved were non-violent offenses of jumping bail, failing to
appear, and tampering with evidence. Conditions imposed in each bond order,
that included the requirement that the petitioner appear in court each
week, and that the petitioner be kept, at his own expense, under 24 hour
supervision by a licensed peace officer of the state, addressed any flight
risk.
Ex
parte Durst
§
Real Property: Intervening conveyance was not required for
wife to convey property to herself and husband as joint tenants with right
of survivorship.
A wife
was not required to use a straw man or intervening conveyance in order to
convey her fee simple interest in property to herself and her husband as
joint tenants with right of survivorship. Therefore the property passed to
the husband in fee simple when the wife died. Even if the conveyance
created a tenancy in common, the trial court was obligated to construe the
deed to create a joint tenancy with right of survivorship in light of
wife's express intent that the property pass in fee simple to the survivor.
Estate
of Sherman ex rel. Maddock v. Estate of Sherman ex rel. Snodgrass
§
Copyrights: State prisoner did not own copyright in his
automobile license plate design.
A state
prisoner who created the design for an automobile license plate while
working in the prison print shop could not claim a copyright interest in
the design. The prisoner was a state employee, and his creation of the
design was within the scope of his employment. Thus, under the
work-for-hire doctrine, any copyright in the design was owned by the state.
McKenna
v. Lee
§
Energy and Utilities: Award of liquidated damages under
Wiretap Act is discretionary.
Addressing
an issue of first impression, the Eleventh Circuit has ruled that an award
of liquidated damages under the Wiretap Act for intercepting electronic
communications is discretionary. The court disagreed with a decision of the
Seventh Circuit, which ruled that such an award was mandatory. The Court
upheld a district court's decision not to award liquidated damages to a
satellite television broadcaster in its action against an individual who
used a pirate access device to intercept the broadcaster's programming for
private viewing at his home.
DIRECTV,
Inc. v. Brown
§
Family Law: Parol evidence was admissible to define
"cohabit."
The
property settlement agreement in a divorce action, stating that alimony
payments to the wife would end, after a minimum period, if the wife were to
"cohabitate," was ambiguous as to whether it referred to or
included the wife living with a person of the same sex, and thus, parol
evidence was admissible. "Cohabitate" was not defined in the
agreement, nor was there an incorporation of a definition from an outside
source, such as the Divorce Code, which defined cohabitation in terms of
people of opposite sexes living together. "Cohabitate," as used
in the agreement, was not followed with any language that clarified the
specific person or persons with whom the wife could or could not cohabit
for purposes of continuing to receive alimony payments. In common usage, as
various dictionaries reflected, "cohabit" had several definitions
and was not necessarily limited to that which occurred between a man and a
woman.
Kripp
v. Kripp
§
Government: Legislature could not authorize games in which
chance predominated outcome of game.
The
Alabama constitution prohibited the Legislature from authorizing lotteries
or gift enterprises that involved games or devices in which chance
predominated the outcome of the game, even if some skill was involved. In
addition, the statute exempting bona fide coin-operated amusement machines
(COMs) from criminal gambling statutes could not be construed so as to
legalize games or activities in which skill did not predominate over chance
in determining the outcome, as such construction would contravene the
state's constitutional ban on lotteries.
Ex
parte Ted's Game Enterprises
News
§
Benin
Judges To Go On Strike Over 'Meddling'
Benin judges have
decided to go on a three day strike to force the closure of all courts and
tribunals and paralyzing the justice ministry. The strike is the second in
less than a month. The judges have accused the Benin government of
interfering frequently in judicial matters.
§
Zimbabwe
To Go For Nationalisation Of All Land
Zimbabwe plans to end
private ownership of land by replacing all title deeds with 99-year leases.
All land-owners in that case would be required to go to the government to
be "vetted" to get a lease. The move is to aim at resettling all
land as state property which will now onwards enable the utilisation of the
land for national prosperity. It is important to note that private
ownership of land is not allowed in many African countries.
§
TV
Miracle Ban Divides Nigerians
Nigeria remains
deeply divided over a ban imposed last month on television stations showing
so-called "miracles". This happened as a result of an edict from
Nigeria's National Broadcasting Commission, which took effect from the
beginning of May. The NBC, the body which regulates broadcasting, says some
of the miracles shown on television are false and stations can broadcast
miracles only when they are verifiable. But this move has strongly been
resisted by the members of the Christ Embassy, one of the largest churches
which used to show healing services and have now gone to court to challenge
the NBC.
§
Doping
Probe For US Duo
American Sprinters
Montgomery and Gaines, accused of doping violations, have both received
letters from the US Anti Doping Agency, USADA. The charges relate to the
investigation into the Balco laboratory, which has been linked with new
steroid THG.
§
Chile
Declines To Hand Over Argentine President, Menem
A Chilean court has
rejected the second of two extradition requests for former Argentine
President Carlos Menem. Mr Menem has been living with his family in Chile.
Judge Jaime Rodriguez Espoz said he could not agree to the request, as Mr
Menem was not on trial in Argentina and had no previous conviction there.
The Argentina authorities want to question the 73-year-old in cases of
alleged fraud and illegal enrichment.
§
Blackberry
Battle Enters The Court
The Blackberry, one
of the hottest gadgets in recent years and which has become the gadget to
be seen with is to be faced with a court case that is beginning in
Washington. The case will decide the fate of the Blackberry. The issue is
the US patent for the Blackberry, a handheld phone and e-mail device which
has become ubiquitous among the corporate elite. Research in Motion, the
Canadian firm that makes the Blackberry, is appealing against an injunction
that effectively bars it from the key US market. The injunction was won in
2003 by NTP, a firm owned by engineer John Campana. Mr Campana, who owns 50
patents through NTP, claims Research in Motion violated some of the patents
he owns governing wireless text communication.
§
China
Starts The Multi-Billion Dollar Fraud Trial
In Southern China, on
the island of Hainan, the trial has begun of 25 people accused of carrying
out a $3.15bn fraud which is said to be one of the largest embezzlement
cases since the communists took power in China in 1949. The amounts of
money allegedly involved in this case are large even by China's dizzying
standards.
§
EU
All Set For Biggest-Ever Election
Citizens in 25 EU
member states are set to elect representatives to the body's parliament, as
the world's biggest trans-national polls start. Issues set to dominate the
polls include the war in Iraq and the degree of European control over local
affairs. The first countries to go to the polls will be the Netherlands and
Britain; turn-out is not expected to be high in either nation.
§
Germany
Sentences Torture Pupils
A court in Germany
has sentenced three students, aged between 16 and 18, to prison sentences
of up to a year and a half for abusing a classmate. The case sent
shockwaves through Germany. The teenagers were found guilty of repeatedly
beating and sexually humiliating their victim at a special school in the
town of Hildesheim. The case has caused much angst about the state of
Germany's schools.
§
Qatar
Launches First Constitution
The Gulf state of Qatar has issued its first written
constitution, introducing a partially-elected legislative body. The
constitution will come into force in 2005. It keeps ultimate power in the
hands of the emir but provides for a two-third elected advisory body. The
constitution - which received overwhelming support in a referendum last
year - guarantees freedom of expression, assembly, and religion.
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