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Legal news from Thursday, October 4, 2012




Eighth Circuit affirms dismissal of health care law challenge
Brandon Gatto on October 4, 2012 3:41 PM ET

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[JURIST] The US Court of Appeals for the Eighth Circuit [official website] on Thursday upheld the dismissal [opinion, PDF] of a challenge to the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] due to the plaintiffs' lack of standing. Although Missouri Lieutenant Governor Peter Kinder [official website] and six other citizens alleged that the PPACA violates provisions of both the US and Missouri constitutions, the Eighth Circuit emphasized that even a finding of proper standing would result in dismissing the case based on the US Supreme Court [official website] decision in National Federal of Independent Business v. Sebelius [opinion, PDF; JURIST report] in June. The court here, however, concluded that Kinder lacked standing "because he sued in his individual capacity, and he could not allege injury based on his performance of duties as an officer of the State of Missouri," thus negating the need to even discuss the Supreme Court decision. The Eighth Circuit's ruling affirms a decision [JURIST report] made in April 2011 by the US District Court for the Eastern District of Missouri [official website] on the same grounds.

In July the US District Court for the District of Nebraska [official website] dismissed a lawsuit [JURIST report] filed by seven state attorneys general challenging the PPACA's health care mandates, particularly those that require all employer health care plans, including those of religious institutions, to cover contraception. In June the Supreme Court's 5-4 ruling that declared the PPACA constitutional centered on the "individual mandate" provision [text] of the act, which requires every person, with some exceptions for religious and other reasons, to purchase some form of health insurance by January 1, 2014, or be subject to a fee equal to either a percent of that individual's income or flat rate of $695. In his opinion, Chief Justice John Roberts held that individual mandate is not a requirement that Americans buy insurance, since individuals who choose to pay the flat-rate fee are in full compliance with the law. The Court's decision resolved four consolidated cases accepted by the court [JURIST report] in November 2011.




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UN rights chief urges Serbia to allow gay pride parade
Brandon Gatto on October 4, 2012 2:56 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday urged Serbia [press release] to protect universal freedoms and allow a banned pride parade for the lesbian, gay, bisexual and transgender community. The pride parade, which was scheduled to be held this Saturday in Belgrade, was canceled [Reuters report] by the Serbian Ministry of Interior [official website] for security reasons. A similar cancellation occurred last year after the Belgrade parade of 2010 [ABC News report] amounted to violent attacks, vandalism, and wounded police officers and civilians. Pillay, however, parried the security argument by reasoning that banning peaceful assembly altogether further violates human rights. "States should confront prejudice, not submit to it," said the High Commissioner, who relied on the fundamental freedoms of expression, association and peaceful assembly to make her case to the Serbian government. Pillay also acknowledged Serbia's progress in the protection of human rights since 2008, and deemed the Belgrade parade another opportunity for the country to reaffirm its commitment to human rights. Outside of the parade, Serbia has on previous occasions celebrated gay rights [press release], most notably on International Gay Pride Day.

Serbia is one of several countries allegedly restraining freedom of expression in light of a restrictive approach to gay pride parades. In August a city court in Moscow refused to overturn [JURIST report] the municipal government's ban on gay pride marches for the next century. Specifically, the court affirmed the Moscow municipal government ruling that any public gatherings classified as gay pride marches are prohibited from March 2012 until May 2112. In June Human Rights Watch (HRW) [advocacy website] sent a letter [JURIST report] to Bulgarian Justice Minister Diana Kovacheva urging her to denounce calls to violence by anti-gay groups in anticipation of a gay pride parade in Sofia, Bulgaria, on June 30. In May 2010 a court in Lithuania ruled [JURIST report] that the nation's first gay pride parade could proceed as scheduled, overturning a lower court's decision to ban it.




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Bosnia court acquits two former policemen in Srebrenica massacre case
Rebecca DiLeonardo on October 4, 2012 12:55 PM ET

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[JURIST] The war crimes court [official website] of Bosnia and Herzegovina (BiH) on Wednesday acquitted [press release] two Serbian defendants of involvement in the 1995 Srebrenica massacre [BBC backgrounder; JURIST news archive]. Dragan Neskovic and Zoran Ilic were charged with crimes against humanity for their role in the massacre at Srebrenica and other war crimes. In a press release, the court announced that the two men were acquitted because "it was not proven that they committed the crime they were charged with." Ilic was arrested [JURIST report] in 2009 with two other police officers for their alleged involvement in the massacre. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has jurisdiction over high-level war crimes allegations, such as those against Bosnian Serb wartime leader Radovan Karadzic [ICTY materials; JURIST news archive] and General Ratko Mladic [ICTY materials], the BiH courts have been able to try lower-level suspects.

BiH has been continuously prosecuting, convicting and sentencing those responsible for the killing during the massacre, and even those who left the country are being brought back to face charges. In June the country's war crimes court sentenced [JURIST report] four former Bosnian Serb soldiers [case materials, in Croatian] for their involvement in the 1995 massacre. In May US resident Dejan Radojkovic was deported [JURIST report] to BiH to stand trial before the country's court for his actions as a police commander in Srebrenica during the 1995 massacre. He was arrested in 2009 after it was revealed that he did not disclose his involvement in the conflict and his appeal was rejected in February. He was the second to be deported after his commanding officer, Nedjo Ikonic, was deported in 2010 [JURIST report]. A day earlier, the war crimes court convicted [JURIST report] Dusko Jevic and Mendeljev Djuric for taking part in the killing of 1,000 Muslim men during the massacre after it found that the two former Bosnian Serb police officers were guilty of aiding and abetting genocide. They had been indicted on genocide charges in January 2010 after being arrested [JURIST reports] in October 2009. In January the court also upheld the conviction [JURIST reports] and 31-year sentence of Radomir Vukovic for his part in the 1995 massacre.




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Philippines court orders arrest of former president
Rebecca DiLeonardo on October 4, 2012 12:25 PM ET

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[JURIST] An anti-graft court in the Philippines on Thursday ordered the arrest of former president Gloria Macapagal-Arroyo [BBC profile; JURIST news archive] in a corruption case alleging the misuse of state lottery funds. This is the third corruption case pending against Arroyo, who made bail in July [JURIST report] after eight months of detention in an army hospital. This most recent case against Arroyo accuses her of misusing over $8 million in state lottery funds while in office. Other corruption cases accuse her of election fraud and accepting bribes. Arroyo has maintained her innocence in all cases, suggesting the charges are politically motivated. Lawyers for Arroyo told the court on Thursday that the newest charges were unsupported [AP report] and that the government's witnesses do not have first-hand knowledge of the events. The court has agreed to review the charges.

Former president Arroyo has been a target of anti-corruption efforts by President Benigno Aquino [BBC profile]. Arroyo was arrested [JURIST report] in November on fraud and corruption charges in the hospital before she was able to leave the country to seek medical treatment. In April Arroyo and her husband Jose Miguel pleaded not guilty [JURIST report] to corruption charges before a special anti-graft court in the Philippines. The non-guilty plea came a month after a Philippines court issued an arrest warrant [JURIST report] against Jose on bribery charges. He was accused of accepting bribes to support the $329-million national broadband network deal with ZTE Corporation. Arroyo faced the same charges in December when the country's authorities filed a second criminal complaint [JURIST report] against her alleging that she approved a $329-million national broadband network deal with the Chinese company in return for millions of dollars in kickbacks in 2008.




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Iraq court sentences US citizen to life in prison for aiding al Qaeda
Max Slater on October 4, 2012 10:44 AM ET

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[JURIST] An Iraqi court on Wednesday sentenced an American citizen to life in prison for funding terrorist activities in Iraq and aiding al Qaeda. Iraq's central criminal court convicted [AP report] Omar Rashad Khalil following a confession he made in which he admitted to receiving money from a Syrian man in the UAE to finance terrorist attacks. The Iraqi Ministry of the Interior [official website, in Arabic] released excerpts of Khalil's confession. Khalil, a 53-year-old architect, was arrested in 2010 [Reuters report] and charged with helping finance and execute terrorist operations in Iraq. The Ministry of the Interior indicated [Global Post report] that al Qaeda recruited Khalil in 2005 after he entered Iraq in 2001.

Iraq's criminal justice system has been the subject of controversy recently. Last month an Iraqi court sentenced former vice president Tariq al-Hashemi [JURIST news archive] to death after convicting him of three counts of murder [JURIST report]. In August a UN human rights expert condemned [JURIST report] Iraq for the executions of 26 people and urged the government of Iraq to halt all executions and ensure that all criminal defendants have fair trials.




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Federal judge strikes down Montana campaign finance law
Max Slater on October 4, 2012 9:45 AM ET

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[JURIST] A judge for the US District Court for the District of Montana [official website] on Wednesday ruled [order, PDF] that a state law [MCA § 13-37-216] that limits campaign contributions violates the free speech clause of the First Amendment [Cornell LII backgrounder]. Montana's campaign finance law limits the individual contributions to gubernatorial and lieutenant governor candidates to $500 and contributions to candidates for other statewide offices to $250. Judge Charles Lovell held that the law unconstitutionally prevents both candidates and potential donors from being able to wage an effective political campaign:
[T]he Court concludes that Montana's contribution limits in Montana Code Annotated Section 13-37-216 are unconstitutional under the First Amendment. ... The contribution limits prevent candidates from amassing the resources necessary for effective campaign advocacy. ... The defendants are therefore permanently enjoined from enforcing these limits.
Montana Attorney General Steve Bullock plans to appeal the decision to the US Court of Appeals for the Ninth Circuit [official websites].

In June the US Supreme Court [official website] struck down [JURIST report] Montana's century-old campaign finance law known as the 1912 Corrupt Practices Act [PPL backgrounder] as invalid under the Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission [JURIST report]. The Supreme Court's decision overturned a ruling [JURIST report] by the Montana Supreme Court [official website] that upheld the Corrupt Practices Act.




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Supreme Court hears arguments on habeas corpus, takings clause
Jaimie Cremeans on October 4, 2012 7:39 AM ET

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[JURIST] The US Supreme Court [official website] on Wednesday heard oral arguments [day call, PDF] in two cases. In Johnson v. Williams [transcript, PDF; JURIST report] the court heard arguments on whether a state court can "adjudicate on the merits" a case when it has denied a habeas corpus [Cornell LII backgrounder] claim but not expressly mentioned a federal law basis for doing so. In this case, the defendant argues that the California state trial court violated her Sixth Amendment [text] right to a trial by an impartial jury by dismissing the lone juror who was holding out for her acquittal based on a finding that the juror was disregarding court orders and holding the prosecution to a higher standard of proof than required by law. Although a federal district court denied her petition for habeas corpus, the US Court of Appeals for the Ninth Circuit reversed the lower court and granted [opinion, PDF] her petition. The Ninth Circuit ruled that the state trial court "cut some corners" to avoid a hung jury and lacked "good cause" to dismiss the juror. The state of California, however, argued Wednesday that there is a categorical rule that deference should be given to a state court to determine the merits of a federal claim, including one for a writ of habeas corpus.

The court also heard arguments in Arkansas Game & Fish Commission v. United States [transcript, PDF; JURIST report] to determine whether recurring flooding of property caused by federal governmental actions constitutes a "taking" under the Takings Clause [Cornell LII backgrounder] of the Fifth Amendment [text], requiring the federal government to pay due compensation to owners of damaged property, if it is only temporary. The Arkansas Game & Fish Commission brought this action against the federal government, alleging that the US Army Corps of Engineers [official websites] caused increased flooding on one of its properties, which in turn damaged timber. The commission claims the damaging of timber on its property constituted a taking for which it deserved compensation, and the US Court of Federal Claims [official website] agreed and awarded damages of more than $5.6 million. The US Court of Appeals for the Federal Circuit, however, overturned [opinion] that ruling, saying that the flooding did not constitute a taking because it was only temporary and did not permanently take over the land. The commission argued to the Supreme Court that it should not matter whether the water remains on the land permanently, but that the government should compensate landowners whenever it releases water that causes a "physical invasion" of private property.




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