Read the opinion In re Detention of Pouncy

Background.  After a lengthy history of incarceration for multiple sexual assaults, the State of Washington sought to have Curtis Pouncy committed as a sexually violent predator (“SVP”) pursuant to Washington state law.  (71.09) 

In order to prove an individual to be a SVP, the State must prove that the individual “has been convicted of or charged with a crime of sexual violence who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.”  Both sides provided evidence to support or to refute whether Pouncy suffered from a mental abnormality or personality disorder.

After the conclusion of evidence, Pouncy proposed an instruction defining “personality disorder.”  The definition that Pouncy requested was:

A Personality Disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment

The judge denied Pouncy’s request and the jury was given no instruction defining “personality disorder.”  The jury could make its own determination as to what is a “personality disorder”.  The jury adjudicated Pouncy as an SVP but they did not specify whether Pouncy suffered from a mental abnormality and/or personality disorder. 

Pouncy appealed the decision on two grounds:  1.) improper impeachment of Pouncy’s expert witness [this issue will not be discussed in this blog entry] and 2.) improper exclusion of an instruction defining “personality disorder”.  The State agreed with the trial judge that no definition was necessary since the term is not defined in Washington’s statutes.  The Washington Supreme Court, on appeal, disagreed, and reversed the adjudication against Pouncy.

Court’s Analysis.  In order to be adjudicated a SVP, the State must prove that Pouncy suffered from either or both a mental abnormality or a personality disorder.  “Mental abnormality” was defined for the jury because it was defined in the statutes.  The same is not the same for “personality disorder.”  Still, just because a term is not defined in the statutes, it does not follow that a jury cannot be instructed on the meaning of a term.

Newdow v. Rio Linda Union School District - The Ninth Circuit upheld "One Nation Under God" in the Pledge of Allegiance.  The Court found the making children say that phrase does not violate the Establishment Clause.

United States v. Cha - The Ninth Circuit found that a 26.5 hour warrantless seizure of a residence is unreasonable. 

United States v. Utesch - The Sixth Circuit found that an interim rule requiring sex offenders to register would have retroactive effect did not apply to the Defendant.  The Defendant was not required to register until the rule was formally adopted by the Attorney General.

United States v. Banegas - The Fifth Circuit overturned Banegas's conviction because his legs were visibly shackled during his trial.

United States v. Navas - The Second Circuit found that the "automobile exception" requirement to obtaining a warrant applied to a trailer that was not even hitched to a cab because it was readily mobile and commanded a diminished expectation of privacy.

Vermont v. Bohannon - The Vermont Supreme Court found that under Vermont's laws, a probation violation is not a crime.  Therefore, the Defendant was not required to pay for the extradition costs after he went to the State of Washington in violation of his parole.

Background.  Kevin Varner was up for parole.  Varner had a Parole Board hearing where four of five of the Board’s members heard Varner’s case.  Two members voted for parole and two voted against.  Since there was not a majority of votes in favor of parole, it was denied.  Varner requested a re-hearing so that all five members could hear his case and make a decision.  His request was ignored.  Therefore, Varner filed a writ of mandamus with the courts seeking an order from the courts requiring all five members of the Parole Board to vote on his case.  The trial court claimed it lacked jurisdiction and dismissed the case.  On appeal, the appeals court reversed and held that it had jurisdiction and that Indiana’s statutes required all five members to vote on the issue of parole.  The case was appealed to Indiana’s Supreme Court.

Argument.  The following is the relevant statute with respect to parole in Indiana:

[A parole eligibility hearing] shall be conducted by one (1) or more of the parole board members. If one (1) or more of the members conduct the hearing on behalf of the parole board, the final decision shall be rendered by the full parole board based upon the record of the proceeding and the hearing conductor’s findings.

The point of contention is meaning of the “full parole board”.  Varner claimed that the phrase requires all five members of the Parole Board to hear and to make a determination.  The State, on the other hand, claimed that the statute only requires a majority of the Parole Board’s members must make a decision with respect to parole.

So, who is correct?  How would you rule?

From the article:

Sexual abuse in detention is a human rights crisis in this country. Reform is urgent, and the commission makes clear how to achieve it. No one expects or wants Attorney General Holder simply to accept the commission's recommendations without question, but it is worth emphasizing that a bipartisan, government-appointed commission has already spent years developing standards to prevent prisoner rape. Its proceedings were inclusive, responsible, and exhaustive, and the standards themselves products of compromise among experts, reflecting the best practices already in place at our best facilities. If Holder needlessly delays in approving these standards, or ones very much like them—worse, if he strips them of their force because of pressure from corrections leaders—then tens or hundreds of thousands of men, women, and children will continue to be raped while in the government's care, when we could have prevented it.

Bobbbbbbyyyyy!!!!

It looks like the Senate will take up a bill that will lower the disparity to be 18-1.  The House has already passed a similar bill and the White House supports such legislation.  Maybe, something will be done.

There are many reasons to end the disparity in sentencing, the most important being the disproportionate effect it has on African-American drug offenders.

[Gee, I wonder why I included a pick of Whitney Houston.  I mean we have not seen the receipts and crack is whack!]

Are you hungry? I got your home country breakfast!

Read the opinion, Coyote Publishing, Inc. v. Miller

Issue.  To what extent may the state of Nevada restrict advertising (commercial speech) for legal prostitution services?

Background.  Nevada is the only State that allows for legal prostitution.  Even so, prostitution is heavily regulated and is only allowed in counties with less than 400,000.  Further, counties, through local ordinances, can criminalize prostitution. 

Among the many restrictions on prostitution in Nevada law is the advertising of such services.  Brothels are not permitted to advertise in those counties where prostitution is illegal.  In any county where prostitution is legal, brothels cannot advertise in any “public theatre, on the public streets of any city or town, or on any public highway.”  Finally, any material which publicizes the name and/or address of a place, or inform individuals what services are provided or how to get there is prima facie evidence of an advertisement.

Parties sued the State, claiming that Nevada’s restrictions on prostitution advertising violated the First Amendment.  The District Court ruled, on summary judgment, that the advertising restrictions were unconstitutional.  The State appealed, and the Court of Appeals overruled the District Court decision.

Court’s Analysis.  Commercial speech is generally afforded some First Amendment protection and the courts have applied intermediate scrutiny to any restrictions on commercial speech.  Nevada argued that commercial speech for prostitution should be analyzed under a standard less than intermediate scrutiny because it involves a vice.   The Court of Appeals held that restrictions on advertising of commercial vices, such as alcohol and gambling, are now held to an intermediate standard of scrutiny.  With respect to prostitution, the Court was willing to accept even a lower standard of scrutiny because prostitution is so universally illegal and socially condemned, unlike other vices.  Further, the general justifications for protecting commercial speech – facilitating efficient market exchange and shunning paternalism – are not applicable with respect to prostitution advertising.

Now, some legislators want to offer additional credits for "family friendly" productions, and that absolutely does not include any production which has a gay character.

This may seem a weird way to view Freedom of Speech, but I cannot see how a State Legislature can offer additional incentives based on the content of the speech.  It has to be content neutral.  But, since when does the First Amendment matter to Christian conservatives unless it is to push their belief that they can do as the please while hiding behind their Bibles.

Now, individuals do have a cause of action in the State of New York (California too) if an advertiser or the like uses their likeness for profit, and just for profit.  There is an exception for art, such as when Mattel sued Aqua for their song "Barbie Girl."  In that case, Mattel lost.

Anyway, the funny part about this case is that Lindsay pretty much will have to argue that she is an alcoholic, that it is a part of her essence.  Gotta love it.  Please, let there be a deposition.

This case is interesting in that New York’s highest court clearly has an interest in this case.  But, who else can rule on the legality and constitutionality of this action other than the courts.  Even though everyone agreed that judges in New York needed a raise, must the legislature consider such legislation separately?  Is it really required by the Separation of Powers clause?

Read the opinion Chief Judge v. Governor

Issue.  Does the failure of the New York Assembly to give a raise to judges in over ten years violate New York’s Constitution?

Background.  The last time “Article VI judges” in New York received an increase in their compensation was in 1998.  Since that time, New York judges have seen their respective pay fall as these judges rank 50^th in compensation once you factor cost of living expenses.  All political sides in New York agree that judges needed a raise and attempts have been made to increase judicial salaries.  In fact, money had even been allocated.  However, the increased compensation had not been forthcoming as the increased compensation had been tied to other issues which had yet to be resolved.

Several judges sued the Governor and the State Assembly to get the raise that everyone agrees to which they were entitled.  Three such cases were consolidated and singularly ruled on by New York’s Court of Appeals.  The judges raised different issues.  They argued that the Compensation Clause of the New York Constitution compelled the Legislature to increase wages.  Further, they argued that Separation of Powers required the Legislature to consider judicial compensation separately, so it would not be subject to other political forces and/or factors.  The Court of Appeals rejected the Compensation Clause claim but did rule in favor of the judges with respect to the Separation of Powers claim.

Court’s Analysis.  For this blog entry, the discussion will focus on the Compensation Clause claim and the Separation of Powers claim.  Even before addressing the claims, the Court of Appeals did address its right to adjudicate this case even though it had a vested interest in the outcome.  Under the Rule of Necessity, the Court of Appeals has to hear the case because there is no other judicial body in the State with jurisdiction to hear the case.

Maverick Recording Company v. Harper - The Fifth Circuit held that an individual's intent or subjective belief cannot be used as grounds to assert that you are an "innocent infringer" of copyright.  Thus, Harper's assertion that she believed file sharing of music was akin to internet radio station does not make her an "innocent infringer."

Baribeau v. City of Minneapolis - Even though the Eighth Circuit threw out many claims against the Defendants for arresting a group of protesters on charges of displaying a simulated Weapon of Mass Destruction, the Court did allow the claim for false arrest to go forward.  It appears that the officers arrested the protesters without probable cause and made up a crime a few hours later.  (The protesters were never formally charged with anything.)

Deen v. Egleston - The Eleventh Circuit upheld the constitutionality of Georgia's revision of the statute of limitations for medical malpractice claims.

Lawrence v. Virginia - The Virginia Supreme Court threw out expert testimony that was based on unadjudicated allegations for which the truth of them had not been proven.