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Around the Circuits Again: Some Interesting Cases

Its time for another installment of interesting cases from the various Circuit Courts of Appeal that may wind their way before the Supreme Court eventually. Incidentally, they are called “circuits” because federal judges used to literally “ride the circuits” as in stagecoach circuits deciding cases. Just a little historical tidbit for your reading consumption.

Starting in the 1st Circuit, that Court has ruled that Boston College must hand over recordings to police. These recordings were part of the Belfast Project, an oral history of the strife in Northern Ireland. As part of that project, they interviewed Dolours Price, a former member of the IRA. In 1972, Jean McConville was killed by the IRA after being accused of being a spy for the British Army. Price allegedly admitted that she drove the car to a site where McConville was killed and buried. McConville’s family claims that the recordings may shed light on the role that Gerry Adams played in the death. Adams is the current president of Sinn Fein. Lawyers for Boston College argued that turning over the tapes would place the lives of the project’s director in danger. As the Court ruled: “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.” Also, they noted that a treaty promising cooperation between the US and Britain in criminal investigations takes priority. In effect, Price’s lawyers from the ACLU wanted the same protections for academic research that reporters currently enjoy.

In the 2nd Circuit, Goldman Sachs was slapped down over a $20.5 million arbitration award stemming from the 2005 collapse of hedge fund manager Bayou Group. The award was upheld. Goldman cleared trades for Bayou and argued that their role was simply to clear the transactions, not police their clients. Bayou’s former CEO is serving a 20-year sentence for defrauding investors of over $400 million. The decision is important because, as many experts have argued, it may just force more ethical actions upon Wall Street. Doesn’t arbitration and civil litigation against the “too big to fail” institutions have a greater deterrent effect on Wall Street’s bad tendencies rather than the thousands of pages and regulations of Frank-Dodd? Guess there are options out there besides the heavy hand of government regulation.

In the Big Apple, a lower court ruling would have allowed the city to award cab licenses only to wheel-chair accessible vehicles. A lower court ruled that access to a wheel-chair friendly cab was a “basic civil right.” Yes, and so is a tasty rack of ribs. The 2nd Circuit ruled that federal law only required that the city not discriminate against disabled people applying for cab licenses, not that the cabs themselves serve the disabled. Also out of NYC, their Board of Health dictated that cigarette licensees display grotesque pictures of the effects of smoking. The Court there ruled that the ordinance is preempted by Federal law. As some may be aware, similar litigation over such labeling on packs of cigarettes may actually be before the Supreme Court soon. Remember also that New York City is the same city whose Mayor wants to limit the size of soft drinks. By the way, has anyone seen the size of French fries in a Happy Meal lately?

Nothing out of the Third Circuit to report, but in the 4th, the Court there has, in light of the Supreme Court’s ruling in Arizona v. United States this past term, put South Carolina’s immigration enforcement law on hold. Since South Carolina is one of five states that modeled their law on that of Arizona, the Court decided to revisit the issues at stake in South Carolina, although it would appear that certain provisions are DOA. South Carolina’s best hope on appeal is whether they can criminalize the knowing harboring of an illegal immigrant. And in North Carolina, in a big victory for commonsense, the Court determined that a police officer’s visual estimate of a passing motorist’s speed does not rise to the level of probable cause. The District Court judge ruled the officer had probable cause to determine a traffic violation had occurred. The Circuit Court said estimations do not rise to the level of probable cause. Incidentally, re-enactments of the incident indicated that the motorist was going around 72 in a 70 MPH zone. Lest we think this is much ado about nothing, the motorist Sean Sowards was arrested for drug possession incidental to the traffic stop. Because a cop refused to use a radar gun one afternoon, the entire drug conviction was thrown out.

From the 5th Circuit is the story of Robert Triblett. In response to a search for his missing step-daughter, the police executed a search warrant. On his computer hard drive were scenes of bondage and downloaded child pornography. Triplett argued the validity of the search warrant’s particularity requirement. As a result of the child porn charges, he was sentenced to 10 years in jail after a plea agreement with the federal government. Since the federal issue was settled, his trial on state charges can now go on which could add 40 years to his sentence. Two things: Triplett was convicted of rape in neighboring Louisiana and has a 2003 charge on sexual battery that was pleaded down to aggravated assault. Second, the step-daughter is still missing. Score one for the good guys in taking a pervert off the streets.

In the 7th, importers of potash, a chemical vital to the production of fertilizers, can proceed with an antitrust action against foreign producers of that chemical. This has huge implications since the importers allege that the foreign producers colluded to limit foreign production and driving prices up 600% in the US. It should be noted that the merits of the claims were not addressed, only that the domestic importers can proceed with their lawsuit. Meanwhile, the decision by an administrative law judge that Indiana cannot withhold Medicaid funding for abortion providers was upheld. Planned Parenthood of Indiana was a strong opponent of the Indiana law and used the old tried-and-true “reproductive rights wins” spin to the decision, although Indiana intends to appeal to the 7th Circuit now. It will be interesting to see how the court rules in light of the Medicaid aspect of the Obamacare case under the so-called “coercion theory” where the federal government attaches strings to federal dollars.

Nothing to report from the 8th Circuit which brings us to our favorite whipping boy, the 9th Circuit. Perhaps the most interesting case comes from Idaho. The Court will hear a challenge against the Internet purchase of RU-486, an abortion-inducing drug. Jennie McCormack, five months pregnant at the time, purchased the drug over the Internet, took it and aborted the five-month-old child. Police found the frozen remains in a box on her barbecue. RU-486 is authorized for use by the FDA for pregnancies no later than 9 weeks. Besides the ban on out-of-state purchase, McCormack also also violated the state’s ban on abortions after 20 weeks and a law against self-induced abortions. There are two even more sad side issues here: her attorney is portraying this murderer as a 21st Century Jane Roe and has stated his intention to take the case to the Supreme Court. Even more sad: McCormack has three other children.

As many know, California is in an on-going battle with Obama’s DEA over medical marijuana. The DEA has spent lots of resources shutting down medical marijuana dispensaries throughout California. Holder claims that the DEA is targeting only those dispensaries in violation of state law despite the fact that these services are regulated and sanctioned by California. This is typical Holder chutzpah. The man is good at lying to Congress with a straight face. If he is really targeting only violators of state law, why aren’t state authorities moving to close these facilities? In a sister-suit in the DC Circuit, Americans for Safe Access (ASA), a medical marijuana advocacy group, is suing the Justice Department to have marijuana removed as a Schedule I (dangerous with no medical value) drug. They are basing this on recent studies showing the value of marijuana for medical reasons. My home state, New Jersey, passed a medical marijuana law a couple years back. However, because Chris Christie cannot get a straight answer in response to three letters to Holder requesting a guarantee marijuana growers and dispensaries will not be targeted, the law sits in limbo. Obviously, federal drug laws preempt state drug laws, so the only real tactic is to remove marijuana from Schedule I status and recognize its medical value. Simply put, obviously street-value marijuana is one thing and one could make a case it is an “gateway drug.” But denying its medical value returns us to the days of “Reefer Madness,” a movie one should see while high on marijuana.

Nothing from the 10th Circuit although immigration laws in Alabama and Georgia are back before the 11th Circuit in light of Arizona v. United States. Georgia contends that the bulk of their law, upon analysis, should be upheld in its entirety as it does not run afoul of that Supreme Court decision. Alabama concedes that parts of its law may not now pass constitutional muster. However, they believe a provision requiring schools to check a student’s citizenship status should go forward. Opponents, naturally, are arguing federal preemption. Briefings have been filed with the 11th Circuit by Georgia.

Finally, the DC Circuit should decide soon on whether the EPA can implement their cross-state air pollution rules designed to decrease or eliminate emissions of sulfur dioxide and nitrogen oxide from mainly coal-fired power plants. Initially set to rule at the beginning of the year, the court delayed action siding with the energy industry that implementation was too soon and they had no time to devise or install pollution-decreasing technology. The EPA rules also includes a cap-and-trade scheme. Energy sector companies from Texas further argue that the rules would create an undue financial burden on power producers and create a less-reliable market. In reality, the biggest winners would be brokerage firms that handle these dumb cap-and-trade transactions. For example, sulfur dioxide permits were selling for $600-$1000 a ton in 2011. Today, those permits are worth $100. Many experts predict that if the rules are implemented, coal-fired plants would convert to natural gas thus bringing them closer to being in compliance, if not totally in compliance, with the EPA rules. That, they argue, will drive up the cost of natural gas which are at a 10-year low.

No one should underestimate the impact of this case on one’s energy bill. If those permits are purchased, you and I pay for them in higher heating and electrical bills. These rules are nothing but yet another example of a hidden tax on any user of electricity regardless of income. A great case can be made that it is, in fact, a regressive tax that hurts lower-earners harder. It is also indicative of the Obama Administration’s war on coal. And lest we forget, it is using the apparatus of a federal bureaucracy- a group of unelected Washington cronies- pressing an agenda administratively, instead of through the legislative process where they know they will not prevail. To Obama it is: “Shoot down cap-and-trade? No problem- I have my EPA.” The fact is, the energy industry is silently moving away from coal-fired plants and converting to natural gas. The fact is that the energy sector has expended vast sums of money to produce energy at a cost-effective rate while lowering emissions. Sometimes, this is under threat from the government, sometimes in response to litigation, and sometimes just a realization based on pure economics. In the wake of the Watergate scandal, people were aghast at Nixon’s use and abuse of federal agencies like the IRA, FBI and CIA to achieve his political ends. With Nixon, this was motivated by his political paranoia. With Obama, the motivation is a liberal political agenda. Voters need to get their act together and realize that Obama’s use and abuse of regulatory agencies like the FBI, DEA, IRS, ATF, ICE and EPA is… well, let’s just put brown shirts on them, end the charade, and be done with it.

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