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Legal news from Wednesday, January 5, 2011




Federal appeals court finds California memorial cross unconstitutional
Julia Zebley on January 5, 2011 3:01 PM ET

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[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] unanimously Tuesday that California's Mount Soledad cross, a 43-foot cross erected as a Korean War veterans' memorial, is unconstitutional under the First Amendment [text]. Justice M. Margaret McKeown declared, "[t]he use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion's symbolism as its own, as universal." Although the cross was found unconstitutional, there was no order for removal, and the court suggested the monument could be altered to achieve constitutionality, without giving any specific recommendations. The American Civil Liberties Union of San Diego (ACLU) [advocacy website], one of the parties to the case, stated [press release] that they were, "pleased that the court recognized the fundamental principle barring the government from playing favorites with religion." The Mount Soledad Memorial Association [official website] plans to appeal [KPBS News] to the US Supreme Court [official website], citing Justice Anthony Kennedy's stay on removing the cross [JURIST report] in July 2006 as hope that that the court will rule in their favor.

In April, the US Supreme Court ruled [JURIST report] in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. This is similar to a long-standing proposed solution for the Mount Soledad cross, as the ACLU has suggested moving the cross to a private religious site [ACLU backgrounder, PDF]. In August 2006, then-president George W. Bush signed [JURIST report] a bill [HR 5863 summary; PDF text] into law that transferred ownership of the Mount Soledad cross to the federal government. The cross, which was erected as a Korean War veterans memorial, has been the center of a religious dispute for 21 years, which began when Philip Paulson, a Vietnam veteran and atheist, challenged the cross as a government endorsement of religion prohibited under the First Amendment and filed the original suit in 1989. Paulson died in 2006. Recently, highway memorial crosses and crosses on license plates [JURIST reports] have also been found unconstitutional by federal courts.




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Federal judge blocks government's Microsoft e-mail contract in Google challenge
Jaclyn Belczyk on January 5, 2011 2:27 PM ET

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[JURIST] A judge for the US Court of Federal Claims [official website] has issued a preliminary injunction preventing the US Department of Interior (DOI) [official website] from accepting a bid from Microsoft [corporate website] to overhaul its e-mail system, according to a ruling made public Tuesday. Google [corporate website; JURIST news archive] had filed a lawsuit [JURIST report] in November alleging that the DOI arbitrarily decided only to allow Microsoft to compete for the contract. Google was allegedly excluded because of security concerns, but the company says it has created a special application, Google Government Apps, that addresses all of these concerns. Furthermore, the company argues its application would save US taxpayers millions of dollars. The DOI may now continue to dispute Google's claim or elect to consider Google's bid.

Over the past year, Google's privacy practices and policies have been the focus of numerous investigations and complaints. In October, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into Google's internal policies and procedures that led to the company inadvertently collecting data on unsecured wireless networks while photographing streetscapes for its Street View maps program. Also in October, Canadian Privacy Commissioner Jennifer Stoddart announced that Google was in violation [JURIST report] of the country's Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA). In August, the South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters [JURIST report] in connection with accusations that the company had been illegally acquiring user data. In July, the Australian Privacy Commissioner announced [JURIST report] that its investigation revealed Google's actions violated the Australia Privacy Act [government backgrounder].




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Ninth Circuit seeks guidance on same-sex marriage appeal from California high court
Jaclyn Belczyk on January 5, 2011 11:33 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday asked [order, PDF] the Supreme Court of California [official website] to weigh in on whether supporters of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, have standing to defend the measure when state officials have refused to do so. Judge Vaughn Walker of the US District Court for the Northern District of California [official website] struck down Proposition 8 [JURIST report] in August. Then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website] were originally defendants in the lawsuit, but they refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. The Ninth Circuit asked the Supreme Court to answer the following question:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
If the court answers in the negative, the Ninth Circuit would likely dismiss the case, and it is unclear whether Walker's ruling would stand. The parties disagree as to what effect a dismissal would have, and the circuit court noted the issue but did not address it. Also Tuesday, the Ninth Circuit upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt [FJC profile] issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report].

The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] last month. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] on Walker's ruling, pending appeal.




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Milwaukee Catholic diocese to file for bankruptcy citing clergy abuse lawsuits
LaToya Sawyer on January 5, 2011 10:40 AM ET

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[JURIST] Archbishop Jerome Listecki announced Tuesday that the Archodiocese of Milwaukee [official website] will file for Chapter 11 bankruptcy protection [press release] as a result of financial strain from lawsuits over the clergy sex abuse scandals [JURIST news archive]. The archdiocese's purpose in filing the petition is to achieve the dual goals of compensating remaining victims and survivors of the abuses and continuing to carry out essential ministerial functions of the archdiocese. Listecki expressed his belief that Chapter 11 reorganization was the best approach to address these goals:
It enables the archdiocese to use available funds to compensate all victims/survivors with unresolved claims in a single process overseen by a court, ensuring that all are treated equitably. In addition, by serving as a final call for legal claims against the archdiocese, the proceeding will allow the archdiocese to provide closure and resolution so we can move forward on stable financial ground, focused on our Gospel mission.
The Chapter 11 process provides federal court supervision of the development of a plan that requires that the remaining archdiocesan resources are allocated fairly. Additionally, the plan must be feasible and not likely to require any further modifications to keep the archdiocese financially viable. The archdiocese expects the reorganization process to be complete within 12 to 18 months.

Further heightening the financial frustrations of Milkwaukee's diocese is the recent Wisconsin Court of Appeals decision, which held [opinion text] that insurance companies do not have to contribute to the clergy abuse settlements. Milkwaukee is now the eighth American diocese to file for bankruptcy [NYT report] in response to the clergy sex scandals. Other state dioceses, such as Vermont [JURIST report], have resorted to selling church property and securing loans as means to meet the financial demands of the abuse settlements. Since 2007, in the US alone, the Catholic Church has settled more than 500 cases [JURIST news archive] of abuse for over $900 million.




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Spain judge launches probe into Iraq refugee killings
Julia Zebley on January 5, 2011 9:00 AM ET

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[JURIST] Spanish National Court judge Fernando Andreu [JURIST news archive] on Tuesday issued a writ to pursue an investigation against Iraqi Lieutenant General Abdol Hossein Al Shemmari for allegedly ordering a July 2009 strike against Iranian exiles at Camp Ashraf in which 11 unarmed civilians were killed, 36 were detained and approximately 500 were injured. Most of the citizens of the camp are members of the People's Mojahedin Organisation of Iran (MEK) [advocacy website], the largest Iranian opposition organization, whose members are considered protected persons under the Geneva Conventions. Although Spain has no discernible involvement in the situation, Andreu cited section 146 of the Geneva Conventions [text] as the basis for his investigation. The probe will continue through the obligation of Geneva signatories to prosecute violations to the Geneva Conventions, despite Spain's October 2009 passage of a law limiting its use [JURIST report] of universal jurisdiction [AI backgrounder; JURIST news archive] to cases involving Spanish citizens. The Iraqi Ministry of Foreign Affairs [official website] claims to have launched an investigation into the situation and criticized the Spanish courts for interfering with its authority [El Pais report, in Spanish], but Andreu found this investigation "insufficient." Al Shemmari's summons is for March 8 in Madrid, but, as active duty military personnel, he may be unable to appear. If he does not appear, proceedings with continue without him.

Before the law was changed in October 2009, Spain allowed the exercise of universal jurisdiction over foreign torture, terrorism and war crimes if the case was not subject to the legal system of the country involved, regardless of its connection to Spain. In June 2009, human rights groups urged [JURIST report] the Spanish government to continue the broad exercise of universal jurisdiction, while some countries, including Israel [Haaretz report], argued [JURIST report] for changes to the practice. Universal jurisdiction has been used by prominent Spanish judge Baltazar Garzon [JURIST news archive] to bring several high-profile cases, including those against Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives]. Investigations have also proceeded against Israeli actions in Gaza in 2002, detainee abuse at Guantanamo Bay and allegations of war crimes and genocide in Rwanda, Tibet, Guatemala and China [JURIST reports].




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