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Legal news from Thursday, November 11, 2010

Montana AG moves to dismiss same-sex marriage lawsuit
Drew Singer on November 11, 2010 12:32 PM ET

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[JURIST] Montana Attorney General Steve Bullock [official profile] has filed a motion to dismiss [text, PDF] a lawsuit [complaint, PDF] by seven same-sex couples seeking rights equal to married couples. The lawsuit, filed in July [JURIST report] by the American Civil Liberties Union (ACLU) [advocacy website] alleges that the state has limited the couples' decision-making powers regarding their health care and finances. The complaint argues that the Montana Constitution says "no person shall be denied equal protection under the laws," but the state legislature has failed to pass legislation in various fields to protect same-sex couples. It requests that the court order the state to offer "same-sex couples and their families a legal status and statutory structure that confers the protections and obligations that the State provides to different-sex couples who marry, but not the status or designation of marriage." Bullock's motion notes several protections that same-sex couples do receive and argues that the courts cannot deliver the requested relief:
Lesbian, gay, and bisexual Montanans have suffered social stigma and discrimination, but Plaintiffs do not allege any state action that has caused these effects. ... By definition -- a definition contained in the Montana Constitution -- these spousal benefit laws do not apply to them. Instead of challenging any law now on the books, Plaintiffs ask the Court to require the enactment of a new law extending spousal benefits beyond the constitutional definition of marriage. Because this relief requires the exercise of the legislative rather than the judicial power, and because spousal benefits do not violate the Montana Constitution, Plaintiffs have failed to state a claim upon which relief can be granted.
The motion also argues that the plaintiffs aren't receiving protections because they are gay, but because they aren't legally married, and they receive the same rights as all other non-married Montanans.

On Tuesday, the Gay and Lesbian Advocates and Defenders (GLAD) [advocacy website] and the ACLU filed separate federal lawsuits [JURIST report] challenging the federal Defense of Marriage Act (DOMA) [text]. Last month, the US Department of Justice filed two notices of appeal [JURIST report] in the US District Court for the District of Massachusetts, defending DOMA. In July, Judge Joseph Tauro ruled that the DOMA definition of marriage as between a man and a woman is unconstitutional [JURIST report] because it interferes with the states' right to define marriage. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports] in legalizing same-sex marriage [JURIST news archive], extending the full benefits available at the state level to same-sex spouses.

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Obama administration asks Supreme Court not to block 'Don't Ask Don't Tell'
Aman Kakar on November 11, 2010 12:19 PM ET

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[JURIST] The Obama administration filed a brief [text, PDF] Wednesday asking the US Supreme Court [official website; JURIST news archive] not to rescind the stay preventing suspension of the military's "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. The filing is in response to a petition filed last week [text; JURIST report] by the Log Cabin Republicans [advocacy website] asking the court to overturn the indefinite extension [order, PDF; JURIST report] of a temporary stay [JURIST report] issued by the US Court of Appeals for the Ninth Circuit [official website]. The government asked the court not to interrupt the policy while it is being considered in lower courts. Additionally, the filing contends that the Log Cabin Republicans bear a heavy burden in asking to overturn the indefinite extension:
An applicant for vacatur of a stay pending appeal granted by a court of appeals ordinarily must demonstrate, first, a reasonable probability that the case will eventually come before this Court for plenary consideration; second, a significant possibility that a majority of the Court eventually will agree with the District Court's decision; and, third, that the failure to vacate the stay probably will cause irreparable harm that outweighs the irreparable harm to the government from a vacatur of the stay.
The filing notes that President Barack Obama and Secretary of Defense Robert Gates oppose the policy, but also stresses their support for the repeal of the policy through legislative measures, citing the need for deliberation, advance planning and training before transitioning from the 17-year-old policy.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. On Sunday, Gates called on the 112th Congress to repeal DADT [JURIST report]. In October, Gates issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Department of Defense officials. In September, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] a US Air Force officer to be reinstated after being previously discharged under DADT. Also in September, the US Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the US House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.

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Taiwan Supreme Court reduces sentence for ex-president Chen
Andrea Bottorff on November 11, 2010 12:12 PM ET

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[JURIST] The Supreme Court of the Republic of China [official website, in Chinese] Thursday reduced the 12-year prison sentences for former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] and his wife to 11 years each for bribery charges. The Supreme Court also assigned fines totaling nearly USD $5 million [AFP report]. The court remanded to lower court [Taipei Times report] another case in which the Taiwan High Court [official website, in Chinese] had previously sentenced [JURIST report] Chen to 20 years in prison on embezzlement charges. The decision comes only one week after the Taipei District Court [official website, in Chinese] acquitted [JURIST report] Chen, his wife and other relatives of charges of money laundering, breach of trust and insider trading in a separate bank merger fraud case. Chen has an opportunity to appeal [AP report] the Supreme Court's decision to the highest court in the country, the Council of Grand Justices.

Chen Shui-bian and his wife were accused of taking more than $20 million in bribes from banks and financial institutions that sought to protect themselves during the implementation of Chen's financial reform program. The pair were sentenced to life in prison [JURIST report] in September 2009 after being convicted of embezzlement, receiving bribes, forgery and money laundering. Chen was again indicted [JURIST report] shortly after the September sentence on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008 and formally indicted [JURIST report] the following month. He unsuccessfully appealed [JURIST report] his pretrial detention in January 2009. Chen served as president of Taiwan from 2000-2008.

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Australia high court rules application of migrant laws unfair
Maureen Cosgrove on November 11, 2010 11:20 AM ET

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[JURIST] The High Court of Australia [official website] on Thursday ruled unanimously [judgment text] that two Sri Lankan men held offshore on Christmas Island had been denied procedural fairness. The court stated that the government wrongfully denied the asylum seekers, who wanted to apply for visas, access to the Australian legal system. The plaintiffs entered the Australian territory of Christmas Island by boat and were detained under section 189(3) [text] of the Migration Act of 1958 [text], which provides that "If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person." Upon detention, the Department of Immigration and Citizenship [official website] conducted a Refugee Status Assessment (RSA) [overview] for each of the plaintiffs and concluded that neither plaintiff was a person to whom Australia had protection obligations. The investigators who conducted Independent Merits Reviews (IMR) [overview], third-party RSA reviews requested by the plaintiffs, reached the same conclusion. The plaintiffs were unable to challenge the RSA and IMR inquiries because they were being held at offshore detention centers. The court held that the reviewer who conducted the RSA made an error of law by not treating provisions of the Migration Act and court precedent as binding. The ruling also establishes that asylum seekers who arrive by boat must be treated as those who arrive by plane. The ruling could force the Australian government to review its offshore processing policy [BBC report] for asylum seekers.

Australia's immigrant processing system has undergone a number of changes in recent years. In April, Australia temporarily suspended [press release, JURIST report] processing of all asylum claims from Sri Lanka and Afghanistan because of improved security situations in those countries. The Australian House of Representatives [official website], in August 2006, approved the Migration Amendment (Designated Unauthorized Arrivals) Bill [text] requiring asylum seekers arriving in Australia by boat to be processed in offshore camps [JURIST report], rather than on the mainland. A November 2006 judgment [JURIST report] by the High Court of Australia held that a "holder of a temporary protection visa is not entitled to further protection in Australia if they are no longer in danger in the country from which they fled" and that the person may not remain a refugee. Australia's mandatory detention [AHRC backgrounder] policy, which requires any non-citizen without a visa seeking entry to be detained, had previously been challenged [JURIST report] by rights groups.

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FCC investigating Google for Street View privacy breach
Erin Bock on November 11, 2010 10:58 AM ET

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[JURIST] The US Federal Communications Commission (FCC) [official website] confirmed on Wednesday that it is investigating Internet search company Google [corporate website; JURIST news archive] to determine if it violated communications laws when its Street View vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. The FCC did not reveal any details, but stated that the investigation was officially opened earlier this year [WSJ report]. If Google is found to have intentionally violated federal communications law, including electronic eavesdropping laws, the company could face fines of up to $50,000 for each violation. Members of Congress have also indicated that the incident could factor into new Internet privacy legislation that will be considered next year.

The FCC is the most recent government organization to initiate an investigation into the breach, which has come under international scrutiny. Earlier this month, the UK Information Commissioner's Office (ICO) [official website] announced that the company committed a "significant breach" [JURIST report] of the country's Data Protection Act [text] when Street View vehicles inadvertently collected personal information over WiFi networks including passwords, e-mails and URLs. In October, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into the company's internal policies and procedures that led to the breach. Also in October, Canadian Privacy Commissioner Jennifer Stoddart [official website] announced that the Street View breach violated [JURIST report] the country's Personal Information Protection and Electronic Documents Act [text, PDF]. Investigations were also initiated in Australia, South Korea and Spain [JURIST reports]. Additionally, earlier this month, Google announced that it had settled [JURIST report] a class action lawsuit regarding privacy breaches related to its Google Buzz social networking program.

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Myanmar high court rejects Suu Kyi appeal
Jay Carmella on November 11, 2010 9:00 AM ET

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[JURIST] The Myanmar Supreme Court on Thursday rejected an appeal by pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] challenging the conditions of her house arrest. The appeal is largely symbolic, as Suu Kyi is scheduled to be released [JURIST report] on Saturday. However, Suu Kyi's lawyers fear that the ruling could be a sign that conditions will be attached [BBC report] to her release. The Supreme Court announced [JURIST report] in October that it would hear the appeal that Suu Kyi lodged in May. Despite a scheduled hearing for October 18, the court waited until after Sunday's controversial elections [JURIST report] to decide against Suu Kyi. The elections were the first held in Myanmar in 20 years, and have received heavy international criticism. Suu Kyi's lawyers indicated that she will not accept any conditions on her release, and it is anticipated that she will assist in a challenge [AP report] against the election results in which the ruling party maintained its hold on power.

Suu Kyi was prohibited from participating in the election under current Myanmar election laws [JURIST report]. In October, Suu Kyi filed an appeal [JURIST report] to the Supreme Court challenging the dissolution of the National League for Democracy (NLD) [party website]. In June, an independent UN human rights expert called for the release [JURIST report] of Suu Kyi and other political prisoners in Myanmar, claiming their continued detention "contravenes international human rights law and casts a long shadow over planned elections in the country." Suu Kyi originally challenged the election law [JURIST report] dissolving the NLD in April, but her suit was rejected. In March, the NLD announced that it would not take part in the nation's first elections in 20 years after the Myanmar Supreme Court rejected [JURIST reports] a lawsuit brought by the NLD to repeal the election laws preventing Suu Kyi from participating.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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