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Legal news from Tuesday, February 14, 2012




NJ Senate votes to approve same-sex marriage
Sung Un Kim on February 14, 2012 1:56 PM ET

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[JURIST] The New Jersey Senate [official website] on Monday voted 24-16 to approve the Marriage Equality and Religious Exemption Act [text, PDF], a bill which, if enacted, would legalize same-sex marriage [JURIST backgrounder] in the state. Under the bill, marriage would be defined as the "legally recognized union of two consenting persons in a committed relationship." The legislation would not require any member of the clergy or religious institution to perform same-sex marriages, or provide space for same-sex marriage services. The bill would also effectively end the state's current civil union system, with all partners currently in civil unions being deemed married. The NJ State Assembly is expected to vote on the bill Thursday, and if it is approved the legislation will move to Governor Chris Christie [official website] for his signature or veto. Christie has indicated that he plans to veto the bill [WSJ report], suggesting that the same-sex marriage issue should be put on the ballot for New Jersey citizens to decide. Senate President Stephen Sweeney [official website] has expressed confidence [Star-Ledger report] in being able to override a veto by Christie, and rejected the idea of a public referendum on a civil rights issue. In order to override such a veto, 27 votes will be needed in the Senate and 54 votes in the Assembly.

The approval of the bill by the NJ Senate marks a shift on the issue of same-sex marriage in the state from last year, when a similar bill was defeated [JURIST report] in the Senate. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. On Monday, Washington Governor Christine Gregoire [official website] signed legislation [HB 6239] legalizing same-sex marriage [JURIST report], and making Washington the eighth jurisdiction in the US to offer marriage to same-sex couples. Same-sex marriage has previously been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. The case for same-sex marriage was recently made by JURIST contributor Kimberly Bennett in Judicial Activism and the Recognition of Same-Sex Marriage [JURIST op-ed].




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Tunisia court drops charges against former PM of Libya
Brandon Gatto on February 14, 2012 1:29 PM ET

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[JURIST] A Tunisian court on Tuesday dropped charges against former Libyan prime minister Al Baghdadi Ali al-Mahmoudi [JURIST news archive] for illegally entering the country, but the former figurehead under the regime of Muammar Gaddafi [BBC obituary; JURIST news archive] remains in jail until a final decision on his extradition to Libya. The court dismissed the charges [Reuters report] after determining that al-Mahmoudi had lawfully crossed into Tunisia from Libya. Al-Mahmoudi's lawyer has indicated that he is attempting to have him released from custody while awaiting the extradition process. This decision comes following negotiations between the Tunisian interim government, led by President Moncef Marzouki [official website, in Arabic], and the Libyan National Transitional Council (NTC) [official website] concerning the circumstances of extraditing al-Mahmoudi back to Libya. Marzouki has stated that the approval of the extradition would depend on adequate reassurances from Libya that al-Mahmoudi would be treated humanely if transferred to Libyan custody. The decision also comes despite several human rights groups arguing against the former prime minister's extradition.

In January, the Tunisian League for the Defense of Human Rights, Amnesty International, and Human Rights Watch (HRW) [advocacy websites], among other human rights groups, urged [JURIST report] Tunisia not to extradite al-Mahmoudi because he would be "at a real risk for torture" if returned to Libya. At the time, reports indicated that al-Mahmoudi feared for his safety and claimed to be the sole possessor of Libyan state secrets following Gaddafi's death in October [JURIST reports]. Some commentators have argued that former African leaders accused of human rights violations should be tried in their home countries [JURIST op-ed]. Tunisia ordered al-Mahmoudi's extradition in November, prompting a response from HRW [JURIST reports]. Al-Mamoudi was arrested in Tunisia in September 2011, and his extradition is one of many legal episodes within the ongoing effort by Libyan and international courts to investigate officials [JURIST reports] in the former Gaddafi regime.




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China court indicts top fugitive on bribery charges
Sung Un Kim on February 14, 2012 12:51 PM ET

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[JURIST] A local Chinese court in Xiamen on Monday indicted Lai Changxing [CNTV backgrounder] on charges of bribing Chinese government officials and running a Xiamen-based network that smuggled large quantities of goods during the 1990s. As chairman of the Yuanhua Group in Xiamen, Lai allegedly smuggled [Reuters report] billions of dollars worth of various goods including cigarettes and cars, as well as oil and other chemicals. In order to smuggle the goods through Chinese customs, Lai allegedly bribed government officials with significant amounts of money. More than 200 senior government officials have been implicated in the smuggling ring. The date of trial is still unknown, but if Lai is convicted the Chinese government has indicated that he will face life imprisonment rather than the death penalty. According to state-run media reports, Lai has confessed to all charges [Xinhua report] against him.

Lai fled to Canada with his ex-wife and three children in 1999, when the charges were first brought against him. He was able to obtain refugee protection from the Chinese judiciary system, which allowed the death penalty for his alleged crimes. In 2006, Canada stayed Lai's deportation [JURIST report] based on claims that he would face torture and execution if compelled to return to China. Canada's law prohibits deportations of refugees to countries that use torture as common practice. In July 2011, the Canadian government allowed the deportation of Lai [BBC report] based on assurances from the Chinese government that he would not face capital punishment for his crimes.




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Ninth Circuit hears education challenge to CA affirmative action ban
Brandon Gatto on February 14, 2012 12:34 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday heard oral arguments from minority student advocates who urged the court to reconsider California's voter-approved ban on affirmative action based on race or gender preferences in education and state hiring. The ban, Proposition 209 [text], has been upheld by California courts as a race-neutral measure. Though the measure bars state and local agencies from considering race or gender in employment, contracting, and education, 55 applicants to the University of California (UC) schools of higher education and the Coalition to Defend Affirmative Action (CDAA) [advocacy website] brought this lawsuit to challenge only the higher education element. The students and CDAA claim that affirmative action is needed [Mercury News report] to increase racial diversity at UC campuses and professional schools, and that data shows that UC's efforts to enroll diverse student populations without considering race have failed. On the other hand, Ralph Kasarda, who is defending Proposition 209 on behalf of the university system, argued that the lawsuit is "redundant and baseless," and that the measure "guarantees everyone's right to be treated fairly and not be discriminated against based on skin color or gender."

In October 2011, California Governor Jerry Brown vetoed [JURIST report; veto text, PDF] a bill [text, PDF] that would have effectively overturned Proposition 209 by allowing UC schools to consider demographic factors such as race during the admissions process. The Governor said in his veto message to the Senate that although he agreed with the bill's purpose, it is the role of the Ninth Circuit to decide Proposition 209's boundaries. Governor Brown previously contested [opinion letter, PDF; JURIST report] Proposition 209 in 2009 as California's Attorney General. The CDAA's suit was originally dismissed in December 2010 by the US District Court for the Northern District of California
[official website] in Coalition to Defend Affirmative Action v. Schwarzenneger [text, PDF].




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UN rights chief again urges referral of Syria to ICC
Max Slater on February 14, 2012 12:27 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive], in a speech [text] to the UN General Assembly on Monday, called for the UN Security Council to refer the situation in Syria to the International Criminal Court (ICC) [official website]. Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. She emphasized that the international community needed to hold Syrian officials accountable for their alleged human rights abuses:
The Fact-Finding Mission, the Commission of Inquiry on Syria, and I myself have all concluded that crimes against humanity are likely to have been committed in Syria. I have encouraged the Security Council to refer the situation to the International Criminal Court. All Member States must ensure that these crimes do not go unpunished. The Universal Declaration for Human Rights, adopted by this Assembly more than 60 years ago, makes clear that it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. The people of Syria are asking for the rights that every human being is entitled to.
Pillay cited reports indicating that Syrian security forces have killed more than 5,400 people since violence between President Bashar al-Assad's government and anti-government protesters began eleven months ago.

Pillay, as well as numerous human rights groups, have called for both an end to violence in Syria and ICC prosecution of Syrian officials. On Friday, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] requested [JURIST report] that Syrian officials suspected of crimes against humanity be tried before the ICC. Pillay has addressed the UN Security Council twice to urge ICC prosecutions [JURIST reports]. Last week the UN Children's Fund (UNICEF) [official website] claimed that 11 months of violence in Syria has led to the deaths of hundreds of children [JURIST report]. Earlier this month Human Rights Watch (HRW) [advocacy website] accused the Syrian army of torturing children [JURIST report]. In January, UN Secretary-General Ban Ki-Moon [official profile] demanded [JURIST report] that President Assad end violence against Syrian civilians. In November, HRW declared that Syrian forces were committing crimes against humanity [JURIST report], including torture and unlawful killings of anti-government protesters. JURIST contributing editor Chibli Mallat has argued that a UN Security Council resolution would not have affected meaningful change [JURIST op-ed].




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US State Department sends experts to Haiti to strengthen Haitian courts
Max Slater on February 14, 2012 11:41 AM ET

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[JURIST] The US Department of State (DOS) [official website] on Monday dispatched a team of international law experts to Haiti to assess how to reinforce the Haitian judiciary's power and independence, according to Haitian Prime Minister Garry Conille [official website, in French]. Conille said that one of the experts' goals would be to investigate a ruling [AP report] involving former Haitian ruler Jean-Claude Duvalier [CBC profile; JURIST news archive]. The ruling, handed down two weeks ago, stated [JURIST report] that Duvalier will not face trial for crimes against humanity, including torture, rape and murder during his reign from 1971 to 1986. The ruling prompted an outcry from plaintiffs, as well as human rights groups, who have accused the Haitian government of influencing the judiciary. Though Haitian President Michel Martelly [NYT profile] has denied any involvement with the Duvalier case, Conille requested that the DOS's experts investigate the possibility of a corrupted ruling and help strengthen the judiciary, emphasizing the need for the courts to inspire confidence in the Haitian people.

The rule of law in Haiti has been a contentious issue recently. Last week, UN independent expert Michel Forst proclaimed that the rule of law is making significant progress in Haiti [JURIST report]. Forst focused on the establishment of judicial offices and the adoption of the International Covenant on Economic, Social and Cultural Rights [text, PDF]. In January, a Haitian judge convicted eight police officers [JURIST report] of shooting and killing at least ten prisoners following the January 2010 earthquake. In December, the UN urged an investigation [JURIST report] into alleged torture and unlawful killings perpetrated by the Haitian National Police (HNP) [official website, in French]. In September, Amnesty International (AI) [advocacy website] called on Haitian authorities to prosecute Duvalier [JURIST report] for crimes against humanity. In July, a UN rights expert requested that Haiti prosecute Duvalier [JURIST report] and improve its human rights record.




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Apple asks Federal court to grant injunction against Samsung phone production
Jamie Davis on February 14, 2012 7:03 AM ET

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[JURIST] Apple [official website; Bloomberg backgrounder] requested that the US District Court for the Northern District of California [official website] grant a preliminary injunction against Samsung [official website; Bloomberg backgrounder] on Wednesday, to block the company from selling its new phone, the Galaxy Nexus [official profile]. The smartphone uses Google's newest version of Android [official website] called Ice Cream Sandwich, which Apple alleges infringe on four patents [Apple Insider report] held by Apple. The patents describe features that allow users to search by using a voice command, slide an image to unlock the phone, an autocorrect function for typing and the structure [patent texts] of the operating system (OS). The Galaxy Nexus is the first phone to use Ice Cream Sandwich, the newest version of popular smartphone OS Android. Samsung acknowledged the lawsuit on Monday and stated that they will continue to defend against Apple's intellecutal property suits. It is unsure when the injunction request will be ruled on.

Apple brought a different claim against Samsung last year in the same court alleging that Samsung copied certain features and used similar icons to the iPhone and iPad. In December, District Judge Lucy Koh ruled against Apple and declined to issue a preliminary injunction against Apple in its first claim against Samsung. Apple may still prevail on its claims, but needs to prove both infringement and validity. Apple has also been involved in other lawsuits with Android affiliated companies. In December the US International Trade Commission (USITC) ruled for Apple in its suit against HTC alleging patent infringements. In November the USITC found that Apple did not violate four of HTC's patents. In July USITC ruled that HTC infringed two Apple patents [JURIST reports] relating to the Android operating system.




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