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Legal news from Saturday, June 25, 2011 |
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Federal judge enjoins Indiana immigration law
Aman Kakar on June 25, 2011 3:00 PM ET

[JURIST] A judge for the US District Court Southern District of Indiana [official website] on Friday issued a preliminary injunction [text, PDF] against two provisions of a controversial Indiana immigration law [SEA 590 text]. The American Civil Liberties Union (ACLU) [advocacy website] filed a class action lawsuit [JURIST report] in May challenging the two provisions, one which authorized state and local police officers to make warrantless arrests of persons who have an immigration court removal order against them or who they have probable cause to believe have been indicted or convicted of aggravated felonies. The second challenged provision created a new infraction for anybody other than police officers to knowingly or intentionally accept consular identification as a valid form of identification. Judge Sarah Baker rejected the police officers authority to arrest based on the concession by the defendants that nothing under Indiana law makes the receipt of a removal order, a notice of action or a person's having been indicted for or convicted of an aggravated felony a crime. Baker also expressed concern that the statute contains no reference to Fourth Amendment [Cornell LII backgrounder] protections nor does it include a requirement that power to arrest be granted only if the officer has a separate lawful reason for the arrest. Baker also faulted the statute for failing to provide due process: Apart from the exclusion of Fourth Amendment requirements regarding probable cause to arrest, Section 19 bestows no authority on law enforcement officers beyond the power to arrest for the noncriminal conduct enumerated therein, leaving a deafening silence as to what happens to the arrestee post his arrest. There is no mention of any requirement that the arrested person be brought forthwith before a judge for consideration of detention or release. There is in fact a complete void within the new statute regarding all other due process protections. The order rejected the state's authority to make warrantless arrests based on preemption, finding that the states have no authority to assist the federal government in enforcing immigration laws on their own accord without any agreement with the federal government.
Similar immigration laws have been enacted across the country. In April, the Georgia General Assembly approved a bill requiring police to check the immigration status [JURIST report] of anyone they have probable cause to believe has committed a criminal offense and requiring businesses to use E-Verify to check the immigration status of potential employees. Similar legislation has also been approved in Alabama, Virginia, South Carolina, Utah and Oklahoma [JURIST reports]. Arizona's law is also currently enjoined, and Arizona Governor Jan Brewer (R) has pledged to appeal to the US Supreme Court [JURIST reports]. In May, the US Supreme Court [official website] upheld an Arizona law [JURIST report] requiring employers to utilize the E-Verify system, finding that it was not preempted by federal law and thus not a violation of the Supremacy Clause [Cornell LII backgrounder]. This decision could have an impact on lawsuits challenging legislation in other states.


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Tunisia ratifies Rome Statute, joining ICC
Daniel Makosky on June 25, 2011 2:00 PM ET

[JURIST] Tunisia on Friday acceded [press release] to the Rome Statute [text] of the International Criminal Court (ICC) [official website], which is now set to become effective in the country on September 1, 2011. EU High Representative Catherine Ashton [official profile] commended the move, noting the positive effects that ratification will have [press release, PDF] on prosecuting war crimes. Amnesty International (AI) [advocacy website] offered similar praise [press release] and encouraged the country's regional neighbors in North Africa to follow suit. Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein and President of the Assembly of States Parties to the Rome Statute of the ICC remarked [press release]:Ratifying this founding document of the International Criminal Court has become a symbol of a country's commitment to the rule of law and the fight against impunity. I am very pleased to see that Tunisia has decided to send this strong message as an expression of a future on the basis of the rule of law. This is especially true for the most serious crimes under international law: genocide, war crimes, crimes against humanity and aggression. Tunisia's accession to the Rome Statute is also a testament of the profound changes brought about by the "Arab Spring," which started in Tunisia. It fulfills a central demand of peoples everywhere for societies guided by clear rules and the principle of equality before the law. Tunisia becomes the 116th signatory to the treaty since 1998.
The ICC has been one vehicle through which the international community has attempted to hold accountable leaders in the Middle East and North Africa who have used violent means to quell protests during the Arab Spring [JURIST news archive]. In February, the UN Security Council referred the situation in Libya to the ICC [JURIST report], following allegations of violence against protesters by the government of Muammar Gaddafi. Earlier this week, the ICC said it will decide whether to issue arrest warrants for Gaddafi [JURIST report] and two high-ranking officials on allegations of war crimes. Chief Prosecutor Luis Moreno-Ocampo [official website] said his office has gathered "direct evidence" that the men committed crimes against humanity in connection with efforts to quell the three-month old Libyan revolt. Libya has said it does not recognize the jurisdiction of the ICC and will ignore the warrants if issued.


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New York governor signs same-sex marriage legislation
Aman Kakar on June 25, 2011 12:00 PM ET

[JURIST] New York Governor Andrew Cuomo (D) [official website] on Friday signed legislation [A8354-2011 materials] allowing same-sex couples to marry in the state. The New York State Senate [official website] had passed the Marriage Equality Act 33-29 earlier that day following weeks of negotiations. The act eliminates any legal distinctions between opposite-sex and same-sex marriages [JURIST news archive] and specifies that no clergy member will be forced to perform a marriage ceremony and that any refusing clergy member will not be subject to legal action. The New York State Assembly passed the bill [JURIST report] earlier in the month 80-63. The law will go into effect on July 25, 2011. In a press release [text], Cuomo praised the passage of the bill:New York has finally torn down the barrier that has prevented same-sex couples from exercising the freedom to marry and from receiving the fundamental protections that so many couples and families take for granted. With the world watching, the Legislature, by a bipartisan vote, has said that all New Yorkers are equal under the law. With this vote, marriage equality will become a reality in our state, delivering long overdue fairness and legal security to thousands of New Yorkers.
The New York State Assembly had passed same-sex marriage bills before in 2007 and in 2009, but the bills were unable to pass the Senate [JURIST reports]. Before the passage of the Marriage Equality Act, New York recognized such marriages performed in other states. Earlier this year, the New York State Supreme Court Appellate Division, First Department upheld a lower court decision [JURIST reports] allowing the surviving spouse of a same-sex marriage legally performed in Canada to inherit the deceased spouse's estate. With the legislation, New York becomes the seventh US jurisdiction to allow same-sex marriage. Same-sex marriage is also legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].


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EU gives final approval to Croatia membership
Daniel Makosky on June 25, 2011 10:00 AM ET

[JURIST] The European Council [official website] on Friday agreed [meeting report, PDF] to grant Croatia [EC materials] EU membership following six years of accession negotiations. The decision calls for negotiations to close [press release] by the end of the month and the accession treaty to be signed by year's end, allowing for the country to become the 28th member of the EU on July 1, 2013. In the interim, EU leaders strongly encouraged Croatia to continue pursuing crucial reform initiatives. Announcing the development, Council president Herman Van Rompuy [BBC profile] remarked [press release]:[Croatia] has turned the fundamentals of the State inside out to be fully aligned with European standards. It performed impressively through the past monthseven up until the last weeks and days. Moreover, we are confident that you will continue to pursue the necessary reforms with the same vigor until the accession date, and beyond. Croatia's achievement serves as an inspiring example for the other countries of the Western Balkans. Croatia demonstrates that with political will, a strong national consensus and dedicated work, it is possible to overcome the shadows of the past and to move towards membership of the European Union. The European Commission (EC) [official website] formally recommended [JURIST report] Croatia for accession earlier this month. Countries still in formal negotiations for acceptance into the EU include Iceland, Macedonia, Montenegro and Turkey [EC materials]. It was also announced earlier this month that Serbia [EC materials] will become a candidate country next year [B92 report], with talks slated to open in the spring.
Croatia has been increasing efforts to reform their judiciary in order to gain accession to the EU. Earlier this month, Croatian authorities charged [JURIST report] former military commander and senior interior minister Tomislav Mercep [official profile, in Croatian] for war crimes committed against Serbians during the 1990s conflict in the Balkans. Amnesty International (AI) [advocacy website] released a report [text, PDF] calling for the prosecution of individuals responsible for war crimes a day prior to Mercep's arrest. In 2008, AI called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations, and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs even though Croats have also been accused of ethnic-based war crimes. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] investigating war crimes in the area. The entry talks resumed in October of that year after the ICTY declared that Croatia was fully cooperating [JURIST report].


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