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Legal news from Wednesday, September 5, 2012




DOJ allows New Hampshire voter ID law
Jerry Votava on September 5, 2012 3:58 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday allowed [DOJ letter] a New Hampshire law [materials] requiring the use of photo identification in order to cast a regular ballot during elections. The new law is schedule to take effect on September 13. Voters who are unable to present a government issued will be permitted to cast a regular ballot after they sign a qualified voter affidavit and permit a photograph to be taken of themselves at the polling location. Voters refusing a photograph for religious reasons will be required to affirm an affidavit to that effect. The DOJ qualified its position by stating that "the failure of the Attorney general to object [in this letter] does not bar subsequent litigation to enjoin the enforcement of the changes."

The DOJ rejected a stricter Texas law [JURIST report] in April, noting that SB 14 would have a disproportionate impact on the state's Latino voters, and that the law is potentially discriminatory. The charge came only a month after the DOJ sent a letter [JURIST report] claiming that the law violated Section 5 of the Voting Rights Act. There are currently 33 US states [NCSL backgrounder] that have passed legislation requiring voters to present some form of ID at the polls, including 17 states requiring photo ID. The issue remains legally controversial, with litigation in states such as South Carolina, Pennsylvania, Wisconsin and Minnesota [JURIST reports].




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Greece judges protest proposed pay cuts under austerity measures
Sung Un Kim on September 5, 2012 3:16 PM ET

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[JURIST] Greek judges and court employees on Wednesday assembled in front of the country's Supreme Court in Athens to protest proposed pay cuts under the austerity measures for 2013-2014 which will eliminate public sector jobs and lower wages and pension plans. Around 200 judges, public prosecutors and court workers announced [AP report] that they will cut the operating hours of courts if the proposed new cuts are approved. Salaries of the group have been already cut by 38 percent, and the new proposal is expected to decrease salaries by additional 20 percent. They argue that additional pay cuts would deny them the ability to live a life in dignity. It was also reported that police, fire fighter and coast guard associations are planning to protest on Thursday. Greece proposed the new package in order to obtain the 31 billion euro rescue loan installment. If Greece is not able to receive the loan, its standing within the EU would be endangered.

The austerity measure that faces heavy criticism was approved [JURIST report] by the Greek Parliament [official website, in Greek] in February securing a second bailout for the country to avoid bankruptcy amidst rioting and violence in downtown Athens. Tension was sparked right after the 199-74 vote for the austerity measure when protesters and police officials clashed resulting in looting and burning of buildings. Prime Minister Lucas Papademos [official profile] warned that rejecting the measure would jeopardize Greece's standing in the European community. In July of last year, UN Office of the Commissioner on Human Rights [official website] Independent Expert on foreign debt and human rights, Cephas Lumina, warned [JURIST report] Greece that implementation of previous austerity measures to solve its economic crisis [BBC backgrounder] could result in serious violations of basic human rights. The Greek Parliament passed previous austerity measures with $40 billion in budget cuts, in addition to selling $72 billion in state assets, under pressure from them International Monetary Fund (IMF), the EU and the European Central Bank [official websites], which want to stave off Europe's first sovereign default.




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Germany minister: religious circumcision legal in Berlin
Sung Un Kim on September 5, 2012 2:54 PM ET

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[JURIST] A German state official clarified [press release, in German] Wednesday that circumcision [JURIST news archive] for religious reasons is legal in Berlin. State justice minister Thomas Heilmann [official profile, in German] stated that circumcision would be legal if (1) parents consent to such procedure in writing after they were informed of the associated risks; (2) parents are able to present the religious reason and need for such procedure; and (3) the procedure is performed according to the acknowledged medical standard. The announcement came after a Jewish hospital in Berlin asked the justice minister to clarify the legality surrounding the circumcision procedure. The inquiry was in response to the June ruling by the Cologne state court [official website, in German] that circumcising young boys based on religious traditions is prohibited [JURIST report] even if the parents consent to the procedure. It addressed the issue of whether to criminalize the circumcision of Muslim and Jewish children and reasoned that a child's right to physical integrity is above the freedom of religion and parents' rights.

In July, responding to the controversial decision by the Cologne state court, the German government announced [JURIST report] that it will act swiftly to lift criminal sanctions imposed on circumcision. Spokesperson for Chancellor Angela Merkel [official website, in German], Steffen Seibert, said that without adequate protections for the practice of circumcision, Jewish and Muslim communities would not be able to live in Germany because the practice is so fundamental to the groups.




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Pennsylvania agencies submit brief in shale drilling law appeal
Matthew Pomy on September 5, 2012 11:41 AM ET

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[JURIST] Attorneys for Pennsylvania's Department of Environmental Protection (DEP) and Public Utility Commission (PUC) filed a brief [text, PDF] with the Supreme Court of Pennsylvania [official websites] Tuesday arguing that the appellate court erred in overturning [JURIST report] portions of Pennsylvania's Act 13 [DEP backgrounder]. The Pennsylvania Commonwealth Court [official website] ruled in July that the act violated the state's constitution by placing zoning rights regarding hydraulic fracturing or "fracking" [JURIST news archive] solely in the hands of state authorities. The brief argues that the appellate court applied an improper legal standard in its ruling [Pittsburgh Post-Gazette report] and should have deferred to the state legislature.

Fracking has been a contentious issue in the US recently. In July North Carolina Governor Beverly Perdue vetoed a bill [SB 820 materials; JURIST report] that would have lifted the state's ban on fracking. In May Vermont Governor Peter Shumlin signed into law [JURIST report] a bill outlawing fracking in the state. In January the New Jersey Legislature passed an amendment to a bill that establishes a one-year ban on fracking [JURIST report]. Legislators re-introduced the bill this year after New Jersey Governor Chris Christie conditionally vetoed legislation last June that would have permanently banned fracking in New Jersey [JURIST report]. In October the Environmental Protection Agency announced plans to develop standards [JURIST report] for wastewater discharge from fracking. Last June New York Attorney General Eric Schneiderman sued the US government [JURIST report] for its alleged failure to study the risks of fracking.




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Federal judge rules airlines must stand trial for 9/11 negligence claim
Keith Herting on September 5, 2012 11:24 AM ET

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[JURIST] A federal judge ruled Tuesday that American Airlines and United Continental Holdings must stand trial to defend against a claim by World Trade Center Properties (WTCP), the owners of the World Trade Center towers, who claim that the negligence of the airlines allowed the hijackers aboard the planes which eventually destroyed the towers on 9/11 [JURIST backgrounder]. Judge Alvin Hellerstein of the US District Court for the Southern District of New York [official website] denied a motion [opinion] from United Airlines, American Airlines and others which claimed that the airlines should not be required to go to trial as WTCP already recovered from insurance companies.

In 2007 a $4.09 billion settlement was reached [JURIST report] between insurance companies and WTCP. WTCP was seeking damages from the airlines in the range of $8.4 billion, which they estimate would be the cost of replacing the two towers. The judge in this case has limited to their earnings to the "lesser of fair market value or replacement cost" of the towers which he has put at $2.805 billion—the price WTCO agreed to pay the for the lease for the towers two months prior to the 9/11 attack.




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UN SG accuses Syria government, rebels of rights violations
Keith Herting on September 5, 2012 9:59 AM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official profile] told a General Assembly meeting on Wednesday that both Syrian and rebel forces are responsible for perpetrating widespread rights abuses across the nation. In a statement [text] accompanying his remarks, Ban noted that the situation in Syria is "grave and deteriorating" and urged both rebels and the Syrian government to "abandon military activities, engage in dialogue, protect civilians, and abide by their obligations under international human rights and humanitarian law." Ban put the blame on both sides of the conflict for ratcheting up military activities saying, "government forces and the armed opposition have clearly failed to protect civilians and respect the rules of international humanitarian law." Ban also estimated that more than 1.2 million people are currently displaced within the nation while more than 225,000 refugees have been registered in surrounding nations.

Ban's statement comes on the heels of his request last week for an immediate investigation [JURIST report] into civilian deaths in Syria. On August 19 the UN Supervision Mission in Syria (UNSMIS) [official website] ceased its work [JURIST report]. According to UN Assistant Secretary-General for Peacekeeping Operations Edmund Mulet, the mission's work had to be stopped because the two conditions required by the UN Security Council to renew UNSMIS' mandate—the cessation of the use of heavy weapons and the reduction in violence from all sides—were not met. In mid-August the head of UNSMIS Lieutenant General Babacar Gayee expressed concern [JURIST report] about the growing number of civilian casualties in violent clashes between government forces and armed opposition groups. In July UN Chief Military Observer in Syria Major-General Robert Mood stated that Syrian authorities were committed to implementing the six-point peace agreement [JURIST report] that was reached a week earlier. In June a UN commission stated that Syrian forces may have been responsible [JURIST report] for the killing of more than 100 civilians in Al-Houla in May. Syrian President Bashar al-Assad [JURIST news archive] had denied [JURIST report] the allegations stating that "not even monsters" would carry out the attacks.




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Planned Parenthood asks federal appeals court to reconsider Texas funding law
Maureen Cosgrove on September 5, 2012 9:57 AM ET

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[JURIST] Planned Parenthood [advocacy website; JURIST news archive] on Wednesday asked the US Court of Appeals for the Fifth Circuit [official website] to reconsider its ruling which allows Texas to impose a funding ban on clinics affiliated with abortion providers under the state's Women's Health Program [official website]. The court lifted an injunction [JURIST report] in August that blocked the Texas law affecting the program, which also provides cancer screenings, birth control and other health services to women. A US district court ruled that the Texas law infringed on Planned Parenthood's freedom of speech rights, but the Fifth Circuit disagreed, holding that Planned Parenthood is unlikely to succeed on its freedom of speech claim. Planned Parenthood maintains that it does not administer abortions at clinics that participate in the Women's Health Program. The federal government will no longer continue to fund the program if the Texas funding ban law remains in place, though Texas Governor Rick Perry [official website] has vowed to use state money [press release] to fund the program. Texas citizens were given an opportunity to present their opinions [Reuters report] on the funding issue at a hearing held at the Department of State Health Services [official website] on Tuesday.

This is the latest development in the ongoing reproductive rights controversy [JURIST backgrounder]. In August the Fifth Circuit upheld Louisiana's Act 490, which allows the Department of Health and Hospitals (DHH) [official website] to revoke an abortion clinic's license [JURIST report] immediately after a regulation violation, rather than allowing the abortion clinic time to comply with the regulation. That same month, a Kansas judge refused to dismiss a lawsuit [JURIST report] challenging the state's new abortion clinic regulations after state officials asked that they be upheld without a trial. In July a judge for the US District Court for the District of Arizona [official website] declined to block enforcement of a new Arizona abortion regulation [HB 2036 materials; JURIST report] that will ban abortions after 20 weeks unless there is a medical emergency. Earlier in July a federal judge blocked a Mississippi law [JURIST report] that would have effectively shut down the state's only abortion clinic.




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AI urges investigation of Maldives human rights violations
Matthew Pomy on September 5, 2012 9:48 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Wednesday revealed violent human rights violations [report, PDF] committed in the Maldives against opposition groups and called for an immediate independent investigation [press release] into the actions of security forces. The Maldives have experienced unrest since former president Mohamed Nasheed ordered the arrest of the country's chief justice and then resigned [JURIST reports] as a result of the controversy. This allowed current President Mohammed Waheed Hassan [official profile] to rise to power. A report [text, PDF] by the Commission of National Inquiry (CONI) [official website] concluded that both Nasheed's resignation and the transfer of power to Hassan was legal. AI's report is based on testimony of witnesses and victims and details widespread police brutality against opposition groups with no one being held accountable.

The arrest of the chief justice sparked weeks of tension and unrest that drew international attention. A court in the Maldives in July refused to hear a case [JURIST report] about the legality of the arrest of the chief justice, saying it did not have jurisdiction. Earlier that month the Committee to Protect Journalists (CPJ) [advocacy website] claimed that press freedom in the country has been deteriorating [JURIST report] since Nasheed's resignation in February. In April the Maldives Police Service referred the case against Nasheed to the Prosecutor's General Office two months after an arrest warrant was issued for him [JURIST reports]. Nasheed has claimed that the arrest and charges against him were politically motivated. A group of Maldives lawyers in January asked the International Criminal Court (ICC) [official website] to review the legality of the arrest of Chief Justice Abdulla Mohamed [JURIST report]. During the same month, the Maldives Minister of Foreign Affairs had asked [JURIST report] the UN to help them to resolve the unrest arising out of the arrest of the chief justice.




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Mauritania extradites Libya ex-intelligence chief
Maureen Cosgrove on September 5, 2012 9:29 AM ET

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[JURIST] Mauritanian authorities extradited former Libyan chief of intelligence Abdullah al-Senussi to Libya on Wednesday according to Mauritania state news agencies. Al-Senussi was arrested [JURIST report] in Mauritania in March, and Libya is now seeking to try al-Senussi [BBC report] for crimes he purportedly committed while serving under former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive]. Libya's National Transitional Council (NTC) [official website, in Arabic], the International Criminal Court (ICC) [official website] and France have all requested custody of al-Senussi. The ICC issued an arrest warrant [JURIST report] for al-Senussi in June 2011 on charges of murder and persecution for planning attacks on civilians during the Libya conflict [JURIST backgrounder], but he is also suspected of organizing mass rapes [JURIST report]. France requested custody because al-Senussi was sentenced to life in prison in France for his role in a 1989 plane bombing over Niger that killed 170 people, including 54 French citizens. Al-Senussi also faces charges of illegally entering Mauritania [JURIST report]. Both members of Gadaffi's "inner circle" [JURIST report], al-Senussi and Gadaffi's son Saif al-Islam Gaddafi, have now been arrested.

In November former ICC chief prosecutor Luis Moreno-Ocampo detailed the charges [JURIST report] against al-Senussi and Saif al-Islam to the UN Security Council [official website]. Saif al-Islam was arrested in November, is currently in Libyan custody and faces trial this month [JURIST reports]. Earlier in November Ocampo said that he has evidence against Saif al-Islam for his role in planning attacks on Libyan civilians [JURIST report]. According to Ocampo, Saif al-Islam hired mercenaries to assist him in carrying out his plans to attack civilians that protested the rule of his father.




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Federal judge rules sex reassignment surgery medically necessary for inmate
Julia Zebley on September 5, 2012 6:33 AM ET

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[JURIST] The chief judge for the US District Court for the District of Massachusetts [official website] ruled [opinion, PDF] Tuesday that an inmate serving life without parole must be granted gender reassignment surgery as it is the only possible treatment for her gender identity disorder [NLM backgrounder]. Judge Mark Wolf contended that to do otherwise would constitute a violation of the Eighth Amendment [text] prohibition against cruel and unusual punishment, as the Massachusetts Department of Corrections [official website] would be denying a medically necessary procedure under the Harry Benjamin Standards of Care [text]:
The Eighth Amendment prohibits cruel and unusual punishment. The Supreme Court has explained that "[t]he Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Among other things, the Eighth Amendment does not permit the unnecessary infliction of pain on a prisoner, either intentionally or because of the deliberate indifference of the responsible prison official. Any such infliction of pain is deemed "wanton." The wanton infliction of pain on an inmate violates the Eighth Amendment. Prisoners have long been held to have a right to humane treatment, including a right to adequate care for their serious medical needs. It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care.
Wolf's opinion clarifies that gender reassignment does not fall under the standard of "adequate care" in all gender identity disorder cases, only the ones where the inmate has a diagnosis that proves so severe that only gender reassignment would alleviate suffering. The inmate in question, Mark Kosilek, has been under female hormone therapy treatment and anti-depressants for a number of years, but still remains at risk for self harm and suicide. Wolf found that Kosilek had proven gender reassignment was necessary for her adequate care as an inmate in Massachusetts: "Although female hormones have helped somewhat, he continues to suffer intense mental anguish because of his sincere and enduring belief that he is a female trapped in a male body. That anguish alone constitutes a serious medical need." Although an increasing number of prisons recognize gender identity disorder as a compelling medical ailment that requires treatment, most US health insurance policies do not cover [HRC backgrounder] gender reassignment surgery. Massachusetts passed a transgender anti-discrimination law [JURIST report] late last year.

Earlier this year, the US Supreme Court declined to rule [JURIST report] on a similar case, letting a lower court's decision that found hormone therapy for transgender inmates as medically necessary stand. The standing decision from the Seventh Circuit was analyzed [JURIST comment] by JURIST contributor John Knight [profile], who suggested that laws and regulations against transgender therapy are "blatantly discriminatory" due to "popular biases being put ahead of medical research, singling out a small group of inmates, and blocking medical treatments necessary only for them."




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