Minnesota Governor Mark Dayton has continuously advocated for state funding of all day kindergarten and last month, the Minnesota Senate passed a bill which provides for this funding. Minnesota has struggled with achievement gaps between white students and students of color.  Minnesota is considered to have one of the worst achievement gaps in the nation. Reducing that achievement gap is one of the goals of increased funding for all day kindergarten.

The bills can be found with these citations:

2013 MN S.F.453 (NS) 2013 MN H.F. 630 (NS)

These documents are also the first two that appear if you search in Minnesota Proposed & Enacted Legislation with the following query:

all-day /5 kindergar! & DA(last 6 months)

To explore the idea of all day kindergarten outside of Minnesota, I ran the following plain language search in secondary sources:

ALL DAY KINDERGARTEN

My initial results include:

Luke van Houwelingen, Tuition-Based All-Day Kindergartens in the Public Schools: A Moral and Constitutional Critique, 14 Geo. J. on Poverty L. & Pol’y 367 (2007)

Lisa M. Brooks, Full-Day Kindergarten: A Step Towards Breaking the Cycle of Poverty in Indiana, 37 J.L. & Educ. 437 (2008)

Eugenia Tunstall, The Price of Knowledge: Funding Full-Day Kindergarten in Arizona, 39 Ariz. St. L.J. 1325 (2007)

Changing my search by to include “achievement gap” yields these useful sources:

Floyd D. Weatherspoon, Racial Justice and Equity for African-American Males in the American Educational System: A Dream Forever Deferred, 29 N.C. Cent. L.J. 1 (2006)

James E. Ryan, A Constitutional Right to Preschool?, 94 Cal. L. Rev. 49 (2006)

Erin E. Lawson, Fulfilling the Promise of Education to South Carolina’s at-Risk Children: A New Preschool Initiative in South Carolina, 58 S.C. L. Rev. 1025 (2007)

ADDITIONAL RESEARCH REFERENCES

Head Start Research

Earlier this year, President Obama proposed to provide expanded preschool access, the purpose being to reduce the achievement gap between wealthy and poor children. See 2/14/13 Reuters News 20:24:28. But there are concerns as to the effectiveness of preschool programs on the achievement gap. Head Start is a federally subsidized early childhood education program, whose focus is on low-income children from infancy to kindergarten. A recent study, provided by the U.S. Department of Health and Human Services (HHS), showed relatively nominal benefits. See 2/14/13 Reuters News 20:24:28. Supporters claim that the problems exist because Head Start has been inadequately supported. HHS Head Start research can be accessed at the Office of Planning Research and Evaluation.

Governor Messages

Gov. Mark Dayton vetoed education bills in the past because they failed to fund all day kindergarten.  To search governor messages, navigate to the state legislative history page, run a search like this one:

adv: DAYTON & all-day-KINDERGARTEN and veto!

Then, filter by document type:

Arlington v. FCC

Docket Nos. 11–1545 and 11–1547

2013 WL 2149789

The Communications Act of 1934, as amended, requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the Communications Act, the Federal Communications Commission issued a Declaratory Ruling concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, sought review of the Declaratory Ruling in the Fifth Circuit, arguing that the Commission lacked authority to interpret these time limitations. The Court of Appeals applied the deferential standard of review set forth in Chevron, 467 U.S. 837, relying on Circuit precedent holding that Chevron applies to an agency’s interpretation of its own statutory jurisdiction. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the Act’s broad grant of regulatory authority empowered it to interpret the provision.

The Supreme Court affirmed, holding that courts must apply the Chevron framework to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (i.e., its jurisdiction).

Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. However, if “the statute is silent or ambiguous,” the court must defer to the administering agency’s construction of the statute so long as it is permissible.  When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. There is no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. For agencies charged with administering congressional statutes, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court also found meritless the contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

For Chevron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. Here the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.

Justice Scalia delivered the opinion of the Court, in which Justices Thomas, Ginsburg, Sotomayor, and Kagan, joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment. Chief Justice Roberts filed a dissenting opinion, in which Justices Kennedy and Alito joined.

Sebelius v. Cloer

Docket No. 12–236

2013 WL 2149791

The National Childhood Vaccine Injury Act of 1986 (NCVIA) established a no-fault compensation system to stabilize the vaccine market and expedite compensation to injured parties. Under the Act, a proceeding for compensation is initiated by service upon the Secretary of Health and Human Services and the filing of a petition containing specified documentation with the clerk of the Court of Federal Claims, who then immediately forwards the petition for assignment to a special master. An attorney may not charge a fee for services in connection with such a petition, but a court may award attorney’s fees and costs incurred on an unsuccessful petition, if that petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.

In 1997, shortly after receiving her third Hepatitis-B vaccine, respondent Cloer began to experience symptoms that eventually led to a multiple sclerosis (MS) diagnosis in 2003. In 2004, she learned of a link between MS and the Hepatitis-B vaccine, and in 2005, she filed a claim for compensation under the NCVIA, alleging that the vaccine caused or exacerbated her MS. After reviewing the petition and its supporting documentation, the Chief Special Master concluded that Cloer’s claim was untimely because the Act’s 36-month limitations period began to run when she had her first MS symptoms in 1997. The Federal Circuit ultimately agreed that Cloer’s petition was untimely. Cloer then sought attorney’s fees and costs. The en banc Federal Circuit found that she was entitled to recover fees on her untimely petition.

The Supreme Court affirmed, holding that an untimely NCVIA petition may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim.

As in any statutory construction case, this Court proceeds from the understanding that unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Nothing in either the NCVIA’s attorney’s fees provision suggests that the reason for the subsequent dismissal of a petition, such as its untimeliness, nullifies the initial filing. So long as the petition was brought in good faith and with a reasonable basis, it is eligible for an award of attorney’s fees, even if it is ultimately unsuccessful. Had Congress intended otherwise, it could have easily limited fee awards to timely petitions.  The Court found the attorney fee provision to be clear and unambiguous.

Justice Sotomayor delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito, and Kagan joined, and in which Justices Scalia and Thomas joined as to all but Part II–B.

PPL Corp. v. Commissioner

Docket No. 12–43

2013 WL 2149792

In 1997, the United Kingdom, newly under Labour Party rule, imposed a one-time “windfall tax” on 32 U.K. companies privatized between 1984 and 1996 by the Conservative government. The companies had been sold to private parties through an initial sale of shares, known as a flotation. Some of the companies were required to continue providing services for a fixed period at the same rates they had offered under government control. Many of those companies became dramatically more efficient and earned substantial profits in the process.

Petitioner PPL Corporation (PPL), part owner of a privatized U.K. company subject to the windfall tax, claimed a credit for its share of the bill in its 1997 federal income-tax return, relying on Internal Revenue Code §901(b)(1), which states that any “income, war profits, and excess profits taxes” paid overseas are creditable against U.S. income taxes. Treasury Regulation §1.901–2(a)(1) interprets this section to mean that a foreign tax is creditable if its “predominant character” “is that of an income tax in the U.S. sense.” The Commissioner of Internal Revenue rejected PPL’s claim, but the Tax Court held that the U.K. windfall tax was creditable for U.S. tax purposes under §901. The Third Circuit reversed.

The Supreme Court reversed, holding that the U.K. tax is creditable under §901.

Treasury Regulation §1.901–2 provides the relevant legal standard. First, a tax’s “predominant character,” or the normal manner in which a tax applies, is controlling. Thus, a foreign tax that operates as an income, war profits, or excess profits tax for most taxpayers is generally creditable. Second, foreign tax creditability depends not on the way a foreign government characterizes its tax but on whether the tax, if enacted in the U.S., would be an income, war profits, or excess profits tax. The regulation explains that a foreign tax’s predominant character is that of a U.S. income tax “[i]f . . . the foreign tax is likely to reach net gain in the normal circumstances in which it applies.” Three tests set forth in the regulations provide guidance in making this assessment and indicate that net gain consists of realized gross receipts reduced by significant costs and expenses attributable to such gross receipts, in combination known as net income. A foreign tax that reaches net income, or profits, is creditable.

The U.K. windfall tax’s predominant character is that of an excess profits tax, a category of income tax in the U.S. sense. The Labour government’s conception of “profit-making value” as a backward-looking analysis of historic profits is not a typical valuation method. Rather, it is a tax on realized net income disguised as a tax on the difference between two values, one of which is a fictitious value calculated using an imputed price-to-earnings ratio. The substance of the windfall tax confirms this conclusion. When rearranged, the U.K’s formula demonstrates that the windfall tax is economically equivalent to the difference between the profits each company actually earned and the amount the Labour government believed it should have earned given its flotation value. For most of the relevant companies, the U.K. formula’s substantive effect was to impose a 51.71 percent tax on all profits above a threshold, a classic excess profits tax. Under the principle that tax law deals in economic realities, not legal abstractions, the Court therefore recognizes that the windfall tax is nothing more than a tax on actual profits above a threshold.

Justice Thomas delivered the opinion for a unanimous Court. Justice Sotomayor filed a concurring opinion.

Metrish v. Lancaster

Docket No. 12–547

2013 WL 2149793 On April 23, 1993, respondent Burt Lancaster, a former police officer with a long history of severe mental-health problems, shot and killed his girlfriend. At his 1994 jury trial in Michigan state court, Lancaster asserted a defense of diminished capacity. Under then-prevailing Michigan Court of Appeals precedent, the diminished-capacity defense permitted a legally sane defendant to present evidence of mental illness to negate the specific intent required to commit a particular crime. Apparently unpersuaded by Lancaster’s defense, the jury convicted him of first-degree murder and a related firearm offense. Lancaster, however, later obtained federal habeas relief from these convictions.

By the time of Lancaster’s retrial, the Michigan Supreme Court had rejected the diminished-capacity defense in its 2001 decision in Carpenter, 464 Mich. 223. Although the murder with which Lancaster was charged occurred several years before Carpenter was decided, the judge at his second trial applied Carpenter and therefore disallowed renewal of his diminished-capacity defense. Lancaster was again convicted. Affirming, the Michigan Court of Appeals rejected Lancaster’s argument that the trial court’s retroactive application of Carpenter violated due process. Lancaster reasserted his due process claim in a federal habeas petition. The District Court denied the petition, but the Sixth Circuit reversed. Concluding that the Michigan Supreme Court’s 2001 rejection of the diminished-capacity defense was unforeseeable in April 1993, when Lancaster killed his girlfriend, the Sixth Circuit held that, by rejecting Lancaster’s due process claim, the Michigan Court of Appeals had unreasonably applied clearly established federal law.

The Supreme Court reversed, holding that Lancaster is not entitled to federal habeas relief.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Lancaster may obtain federal habeas relief only if the Michigan Court of Appeals, in rejecting his due process claim, unreasonably applied clearly established Federal law, as determined by the Supreme Court. This standard is difficult to meet: Lancaster must show that the Michigan Court of Appeals’ decision rested on an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Here, the Michigan Court of Appeals’ rejection of Lancaster’s due process claim does not represent an unreasonable application of the law as previously declared by the Supreme Court.

In light of this Court’s precedent and the history of Michigan’s diminished-capacity defense, the Michigan Court of Appeals’ decision applying Carpenter retroactively is not an unreasonable application of clearly established federal law. In Carpenter the Michigan Supreme Court rejected a diminished-capacity defense that the court reasonably found to have no home in a comprehensive, on-point statute enacted by the Michigan Legislature. The Supreme Court has never found a due process violation where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. A state supreme court decision of that order is not unexpected and indefensible by reference to existing law.

Justice Ginsburg delivered the opinion for a unanimous Court.

By now nearly everyone is familiar with the story of Amanda Knox: In 2009 Knox, a University of Washington student studying abroad in Perugia, Italy was convicted of the November 2007 murder of her roommate, Meredith Kercher. Her Italian boyfriend, Rafaelle Sollecito, suffered the same fate. Knox and Sollecito were sentenced to 26 and 25 years of incarceration, respectively. A third defendant, Rudy Guede, was sentenced to 16 years in prison in a separate trial.

In October 2011, after years of struggle, an Italian jury cleared Knox of murder and other charges. She was sentenced to three years on a defamation charge but received credit for time served. Knox eventually returned to her hometown of Seattle where she resides with her family. She had reportedly resumed her studies at the University of Washington. However, the Italian High Court recently quashed her acquittal and ordered a retrial for Kercher’s murder. The retrial is expected to be heard early 2014 in an appellate court in Florence. If convicted in the retrial, Knox would have the option of appealing to the High Court.

The retrial raises issues regarding extradition and the principle of double jeopardy. If convicted, Knox could be ordered to return to Italy. Should she refuse, the Italian government could seek her extradition. This initiated debate focusing on the extradition treaty (1983 WL 472059) between the United States and Italy, and its reference to double jeopardy. Alan Dershowitz, a Harvard law professor, noted that in the United States, “when you appeal a conviction, you waive your double jeopardy rights.” It remains to be seen whether double jeopardy will be binding on the Knox case. She has vowed to fight the charges, and her attorneys have stated that Knox one day hopes to visit Italy again as a free woman.

It’s been said that freedom isn’t free, and if Amanda Knox retains her freedom after the retrial she will have paid a very heavy emotional, physical and psychological price.

To find extradition treaties, navigate to United States Treaties and Other International Agreements (Home > Administrative Decisions & Guidance > Federal Administrative Decisions & Guidance > Department of State > United States Treaties and Other International Agreements)  Enter extradition into the title field:

click to enlarge

DOUBLE JEOPARDY

For additional materials on these matters, try the following searches on WestlawNext:

double jeopardy and extradition to foreign country (14)

Search Type: Plain Language

Content: Overview

Jurisdiction: All Federal

adv: extradit! /s treaty /200 foreign /2 country /200 “double jeopardy” (25)

Search Type: Boolean T&C

Content: Cases

Jurisdiction: All Federal

adv: extradit! /s treaty /p foreign /3 country /p “double jeopardy” (4)

Search Type: Boolean T&C

Content: Secondary Sources

Jurisdiction: All State & Federal

I had a brief discussion today with one of our editors  who tells me that Minnesota Laws 2013, Chapter 74, legalizing same sex marriage should be on Westlaw very soon after the governor signs the bill at a 5:00 pm ceremony (Central time).   Roughly, that means the law should be available around 6 pm depending on how much ceremony there might be before the governor signs the bill.  For obvious reasons, we do not publish session laws to our collections until they are actually signed.  Until then, you may read the engrossed bill here:  2013 MN H.F. 1054 (NS). To find the law, once published, navigate to Minnesota Enacted Legislation on WestlawNext or to MN-LEGIS on Westlaw Classic. Try a simple Terms and Connectors search for chapter 74:

ci(74)

BILL SUMMARY:

Bullock v. Bankchampaign, N.A.

Docket No. 11-1518

2013 WL 1942393

In an adversary proceeding, judgment creditor sought a determination that judgment debt, which arose from Illinois state court’s determination that Chapter 7 debtor breached his fiduciary duty by self-dealing while serving as trustee of his father’s trust, was excepted from discharge. The United States Bankruptcy Court for the Northern District of Alabama entered summary judgment for judgment creditor. Debtor appealed. The District Court and  Eleventh Circuit Court of Appeals affirmed.

The Supreme Court vacated and remanded holding that the term “defalcation,” as used in the section of the Bankruptcy Code excepting from discharge a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny,” includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior; abrogating In re Sherman, and In re Uwimana.

Petitioner’s father established a trust for the benefit of petitioner and his siblings, and made petitioner the (nonprofessional) trustee. The trust’s sole asset was the father’s life insurance policy. Petitioner borrowed funds from the trust three times.  His siblings obtained a judgment against him in state court for breach of fiduciary duty, though the court found no apparent malicious motive. The court imposed constructive trusts on certain of petitioner’s interests—including his interest in the original trust—in order to secure petitioner’s payment of the judgment, with respondent serving as trustee for all of the trusts. Petitioner filed for bankruptcy. Respondent opposed discharge of petitioner’s state-court-imposed debts to the trust, and the Bankruptcy Court granted respondent summary judgment, holding that petitioner’s debts were not dischargeable pursuant to 11 U.S.C. § 523(a)(4), which provides that an individual cannot obtain a bankruptcy discharge from a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” The Supreme Court disagreed and instead found that where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, “defalcation” requires an intentional wrong. An intentional wrong includes not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as the equivalent. Where actual knowledge of wrongdoing is lacking, conduct is considered as equivalent if, as set forth in the Model Penal Code, the fiduciary “consciously disregards,” or is willfully blind to, “a substantial and unjustifiable risk” that his conduct will violate a fiduciary duty. Thus, the Court held that the Court of Appeals applied a standard of “objectiv[e] reckless [ness]” to facts presented at summary judgment and remanded the case to permit the court to determine whether further proceedings are needed and, if so, to apply the heightened standard set forth by the Supreme Court.

Justice Breyer delivered the opinion for a unanimous court.

Bowman v. Monsanto Company

Docket No. 11-796

2013 WL 1942397

Holder of patents for genetically modified soybean seed brought action against farmer, alleging farmer infringed patents by planting progeny of genetically altered seeds covered by patents. The District Court for the Southern District of Indiana, granted holder’s motion for summary judgment of infringement, and farmer appealed. The United States Court of Appeals for the Federal Circuit affirmed.

The Supreme Court held that the patent exhaustion doctrine did not permit farmer to reproduce the seeds through planting and harvesting without the patent holder’s permission.

Respondent Monsanto invented and patented Roundup Ready soybean seeds, which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosate. It sells the seeds subject to a licensing agreement that permits farmers to plant the purchased seed in one, and only one, growing season. Growers may consume or sell the resulting crops, but may not save any of the harvested soybeans for replanting. Petitioner Bowman purchased Roundup Ready soybean seed for his first crop of each growing season from a company associated with Monsanto and followed the terms of the licensing agreement. But to reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption from a grain elevator; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. After discovering this practice, Monsanto sued Bowman for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The District Court rejected Bowman’s defense and the Federal Circuit affirmed.  Under the patent exhaustion doctrine, “the initial authorized sale of a patented article terminates all patent rights to that item”… and confers on the purchaser, or any subsequent owner, “the right to use [or] sell” the thing as he sees fit.  However, the doctrine restricts the patentee’s rights only as to the “particular article” sold.  It leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item. By planting and harvesting Monsanto’s patented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Exhaustion does not extend to the right to make new copies of the patented item. If Bowman was granted that exception, patents on seeds would retain little value. Thus, patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.

Justice Kagan delivered the opinion for a unanimous Court.

Dan’s City Used Cars, Inc. v. Pelkey

Docket No. 12-52

2013 WL 1942398

Vehicle owner brought action against towing company that towed his vehicle and later traded it to a third party without compensating owner, alleging violations of state laws governing enforcement of statutory liens for storage and towing fees, the New Hampshire Consumer Protection Act, and common law negligence. The Superior Court, Northern Judicial District of Hillsborough granted summary judgment to towing company on grounds that the Federal Aviation Administration Authorization Act (FAAAA) preempted owner’s claims. Owner appealed. The Supreme Court of New Hampshire reversed and remanded.

The U.S. Supreme Court affirmed holding that the FAAAA does not preempt state-law claims for damages stemming from the storage and disposal of a towed vehicle, abrogating Weatherspoon v. Tillery Body Shop, Inc.

The Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts state laws “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” Plaintiff alleged that defendant Dan’s City Used Cars, a towing company, took custody of his car after towing it from his landlord’s parking lot without Pelkey’s knowledge, failed to notify him of its plan to auction the car, held an auction despite Pelkey’s notice that he wanted to reclaim the car, and eventually traded the car away without compensating Pelkey for the loss of his vehicle. In disposing of his car, Pelkey further alleged, Dan’s City did not meet the requirements contained in chapter 262 of the New Hampshire Revised Statutes Annotated, which regulates the disposal of abandoned vehicles by a “storage company.” Dan’s City’s misconduct, Pelkey charged, both violated New Hampshire’s Consumer Protection Act and breached the towing company’s statutory and common-law duties as a bailee to use reasonable care while in possession of a bailor’s property.   The Supreme Court found that where Congress has superseded state legislation by statute, the Court’s task is to “identify the domain expressly pre-empted,” focusing first on the statutory language. The  phrase “related to” embraces state laws “having a connection with or reference to” carrier “ ‘rates, routes, or services,’ “ whether directly or indirectly. At the same time, the breadth of the words “related to” does not mean that the preemption clause should be read with an “uncritical literalism.” Thus,  § 14501(c)(1) does not preempt state laws affecting carrier prices, routes, and services “in only a ‘tenuous, remote, or peripheral … manner.’ Pelkey’s state-law claims escape preemption because they are “related to” neither the “transportation of property” nor the “service” of a motor carrier. The FAAAA addition of the words “with respect to the transportation of property”—significantly limits the FAAAA’s preemptive scope. It is not sufficient for a state law to relate to the “price, route, or service” of a motor carrier in any capacity; the law must also concern a motor carrier’s “transportation of property.” Title 49 defines “transportation,” in relevant part, as “services related to th[e] movement” of property, “including arranging for … storage [and] handling.” § 13102(23)(B). Pelkey’s Consumer Protection Act and negligence claims are not “related to th[e] movement” of his car. Chapter 262 regulates the disposal of vehicles once their transportation—here, by towing—has ended. Pelkey seeks redress only for conduct occurring after the car ceased moving and was stored. Dan’s City maintains that because § 13102(23)(B)’s definition of “transportation” includes “storage” and “handling,” Pelkey’s claims fall within § 14501(c)(1)’s preemptive ambit. But “storage” and “handling” fit within § 13102(23)(B)’s definition only when those services “relat[e] to th [e] movement” of property. Thus temporary storage of an item in transit en route to its final destination qualifies as “transportation,” but permanent storage does not. Here, no storage occurred in the course of transporting Pelkey’s vehicle.  Pelkey’s claims are also unrelated to a “service” a motor carrier renders its customers. The transportation service Dan’s City provided—removal of Pelkey’s car from his landlord’s parking lot—did involve the movement of property, but that service ended months before the conduct on which Pelkey’s claims are based. Because chapter 262, on which Pelkey relies, addresses “storage compan[ies]” and “garage owner[s] or keeper[s],” not transportation activities, it has neither a direct nor an indirect connection to transportation services a motor carrier offers its customers.

Justice Ginsburg  delivered the opinion for a unanimous Court.

Thomson Reuters News and Insight reported yesterday that the U.S. Copyright Royalty Board (CRB) appointed two new “royalty judges”: David Strickler and Jesse Feder. The CRB might not be a well-known entity, but “billions of dollars and the fates of entire industries can ride on the Copyright Royalty Board’s decisions”  SoundExchange, Inc. v. Librarian of Congress 571 F.3d 1220 (2009).

The role of the CRB is to set royalty rates and terms for statutory licenses.  See generally, 37 C.F.R. Chapter III. These include rates webcasters pay for broadcasting music, rates paid for cable and satellite retransmissions, and rates paid by musicians for  “covers” of other musicians’ musical works.

The rate making proceedings can be politically charged.  For example, check out the Radio and Internet Newsletter accounts of the initial rate-making proceedings for webcasters. To maintain the fairness of these proceedings, Congress  amended the process several times. Most recently, the Copyright Arbitration Royalty Panels (CARPs) were replaced by the CRB in 2004 (PL 108-419).  Before that, Copyright Royalty Tribunals were replaced by CARPs in 1993 (PL 103-198).

Today’s Copyright Royalty Judges are appointed to six-year terms and are afforded a great deal of power; specifically, they are given “full independence in making determinations concerning adjustments and determinations of copyright royalty rates and terms, the distribution of copyright royalties, ….” 17 U.S.C. § 802(f)(1)(A)(i).

With so much at stake, it’s worthwhile to examine our new CRJ’s legal profiles.  A word of caution here: We make no assumptions about how these individuals might rule or what kind of parties they might favor (e.g., big vs. small).  Consider Jesse Feder, for example.  He served the Business Software Alliance for many years, an organization that has arguably favored a “maximalist” interpretation of copyright law.  Note that opposing counsel for recent BSA litigation includes two public interest groups; the Electronic Frontier Foundation and Public Citizen.

But also note that Mr. Feder  sits on the Section 108  Study Group whose mission is to reexamine “the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of the changes wrought by digital media.”  One cannot say for certain how this advocacy might affect CRB decision-making so we recommend a search across multiple sources:

MONITOR SUITE

The table above can be found on a company report from  Monitor Suite.  Simply search for Business Software Alliance.  The resulting report allows you to view a litigation profile for the BSA that may be filtered by court, practice area, opposing counsel, etc.  For help on this, contact a Reference Attorney at 877 347 6360 (Select 1). You may also run litigation profiles for law firms here.

PROFILER

Both attorneys have numerous documents attributed to them on WestlawNext.  To find them, begin by typing profiler into the search box. A pop-up box will recommend a collection of resources.  Choose, Profiles of Attorneys & Judges:

Use the template to identify the attorney, then access the References tab to view relevant documents (briefs, cases, dockets, etc.)

NEWS

Simple Terms and Connectors searches seem to work though “David Strickland” is a more common name and requies additional filtering.

adv: feder /5 jesse and copyright

For more on the political back-story, try a plain language search in Blogs on Demand

“copyright royalty judge”

Remember that quotes on WestlawNext do not function as a boolean operator unless you direct it do that.  This recommended search  clusters relevant terms near one another. To run as an advanced search click the link at the top of the page after running this recommend search:

Or, start with this:

adv: “copyright royalty judge”

McBurney v. Young – Docket No. 12-17 – 2013 WL 1788080

Virginia’s Freedom of Information Act (FOIA) grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Petitioners are citizens of States other than Virginia who filed records requests under the Act. After each petitioner’s request was denied, they filed suit under 42 U.S.C. § 1983 for violations of the Privileges and Immunities Clause and the dormant Commerce Clause. The District Court granted Virginia’s motion for summary judgment, and the Fourth Circuit affirmed.

The Supreme Court affirmed, holding that Virginia’s FOIA does not violate either the Privileges and Immunities Clause or the dormant Commerce Clause.

Regarding the Privileges and Immunities Clause, the Court held that the right to access public information is not a “fundamental” privilege or immunity of citizenship.  The Virginia FOIA’s citizen/noncitizen distinction has a nonprotectionist aim: it is a mechanism for Virginia citizens to obtain an accounting from their public officials.  The distinction between citizens and noncitizens also recognizes that citizens alone foot the bill for the fixed costs of recordkeeping in the state. And Virginia’s FOIA clearly does not deprive noncitizens of “reasonable and adequate” access to Virginia courts; state court rules provide noncitizens access to nonprivileged documents needed in litigation, and Virginia law gives citizens and noncitizens alike access to judicial records and to records pertaining directly to them.

Neither does Virginia’s FOIA violate the dormant Commerce Clause. Virginia’s FOIA neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Accordingly, this is not properly viewed as a dormant Commerce Clause case.

Justice Alito delivered the opinion for a unanimous Court.  Justice Thomas filed a concurring opinion.

Boyer v. Louisiana – Docket No. 11–9953 – 2013 WL 1788077

The question certified had been whether a state’s failure to fund counsel for an indigent defendant should be weighed against the state in determining whether there was a deprivation of the defendant’s right to a speedy trial.  The writ of certiorari was dismissed as improvidently granted.

Justice Alito filed a concurring opinion, joined by Justices Scalia and Thomas, stating that the record before the Court does not support the proposition that delay in the trial court was caused by the State’s failure to fund the defense.  The concurrence identifies the largest source of delay as the defense’s requests for continuances and other defense motions, and other delay caused by events beyond anyone’s control such as Hurricane Rita.

Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan, stating that the Court’s precedents provide a clear answer to the question: that a delay due to lack of funding should weigh against the state.  The court below found that the majority of the seven-year delay in this case was caused by lack of funding by the state, but did not weigh this factor against the state as being out of the state’s control.  Because this factor should have been weighed against the state–because the state bears ultimate responsibility for adequately funding an indigent’s defense–the dissent would have remanded.

Moncrieffe v. Holder

Docket No. 11-702

2013 WL 1729220

Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is deportable and ineligible for discretionary relief. The INA lists as an aggravated felony “illicit trafficking in a controlled substance,” which includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony, i.e., by more than one year’s imprisonment. A conviction under state law constitutes a felony punishable under the CSA only if it proscribes conduct punishable as a felony under that federal law.

Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense. An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s petition for review, rejecting his argument that marijuana distribution is punishable as a misdemeanor under federal law if the offense involves a small amount for no remuneration, and holding that the felony provision provides the default punishment for his offense.

The Supreme Court reversed and remanded, holding that if a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

Justice Sotomayor delivered the opinion of the Court.  Justice Thomas and Justice Alito filed dissenting opinions.

Robert Edwards, a Nobel prize winning pioneer of in vitro fertilization (IVF) technology died last week. His work and achievements contributed to the birth of the first “test tube baby” born in 1978. In vitro fertilization involves fertilizing a human egg outside of the body, in a laboratory. Once the egg is successfully fertilized, it is then transferred to a woman’s uterus, where the hope is that the egg will implant and result in a successful pregnancy.

The development of this procedure and technology was met with a host of ethical and legal concerns. The Catholic Church early on objected to the work, arguing that human life should only commence through intercourse, and not artificially outside the human body.  And of course, there are a wide variety of legal implications resulting from the use of this technology. With IVF, traditional notions of parenthood thrown aside – the woman donating eggs may not be the woman carrying the child, and may not even be the woman meant to be the eventual mother of the child. The technology has opened up many options for hopeful parents who, for one reason or another, may not be able to have children “the old fashioned way.” It has opened doors for same-sex couples and unpartnered/unmarried individuals to be able to have biological children, or at least genetically related children. But alternatively, there are ethical and social concerns to be considered as well. The Washington Post provides:

“At the same time, because women are paid to donate their eggs or offer their wombs to become surrogate mothers, worries have arisen that the costly procedure has turned reproduction into a commodity. Because infertility clinics are largely unregulated in the United States, critics say many push ethical boundaries. For example, some enable couples to choose the sex of the child.”

SECONDARY SOURCES

I ran the following search in WestlawNext Secondary Sources:

TI,PR(i.v.f. “in vitro fert!”)

In the first few results I found articles about health plan exclusions regarding IVF:

Health Plan that Specifically Excluded In Vitro Fertilization Did Not violate California Law,  2009 WL 3936285

Health Plan Not Obligated to Pay for Teacher’s Infertility Procedure, 9 No. 5 Andrews Health L. Litig. Rep. 5

There are several articles about employment related issues, including discussion about sex discrimination claims after women expressed intentions to undergo IVF, or took time off to do IVF treatments:

7th Cir: In Vitro Fertilization Not Gender-Neutral; Secretary May Proceed with Sex Bias Claim, 2008 WL 8850278

Bar Server Fired After Pursuing IVF Treatement Could Proceed With Her PDA, Title VII Claims, 2011 WL 8828854

There are also articles addressing problems that have arisen in the IVF process:

Couple to Sue for Emotional Damages from Embryo Mix-Up, 8 No. 10 Andrews Health L. Litig. Rep. 10

Fertility Clinic to Face Medical Malpractice Claim, Paretta v. Medical Office for Human Reprod., 10 No. 12 Andrews Health L. Litig. Rep. 5

Ability of Twins Posthumously Conceived Through in Vitro Fertilization to Qualify for Child Survivor Benefits Under the Social Security Act, 11-18-2011 U.S. Sup. Ct. Actions 4

ASTRUE V. CAPATO

Check out the Citing References from this recent Supreme Court decision: Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012)

Child of assisted reproductive technology, 2 Family Estate Planning Guide § 33:20 (4th ed.)

Legal Status of Posthumously Conceived Child of Decedent, 17 A.L.R.6th 593 (Originally published in 2006)

Genetics and reproductive science, Forensic DNA Evidence: Science and the Law § 13:15

IVF FOLLOWING DIVORCE 

My last thought was about IVF and divorce. Some couples might preserve embryos or preembryos resulting from IVF for later use. What happens to those embryos upon the decision of a couple to divorce? I ran the following search in WestlawNext:

i.v.f. “in vitro fert!” /250 divorc! dissol!

A brief glance at some of the initial cases:

J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001), holding: “former wife’s fundamental right not to procreate would be irrevocably extinguished if a surrogate mother bore former wife’s child through use of preembryos, and thus, Court would not force former wife to become a biological parent against her will; and (3) agreement regarding disposition of preembryos entered into at time IVF is begun is enforceable, subject to right of either party to change his or her mind about disposition up to point of use or destruction of any stored preembryos.”

Kass v. Kass, 235 A.D.2d 150, 663 N.Y.S.2d 581 (1997), holding: “(1) informed consent document and uncontested divorce instrument in which parties unequivocally stated their intent as to manner of disposition of cryopreserved fertilized human ova produced during in vitro fertilization procedure governed the disposition of those ova following parties’ divorce, and (2) informed consent document required ova to be used by IVF program for scientific purposes following parties’ divorce.”

J.B. v. M.B., 331 N.J. Super. 223, 751 A.2d 613 (App. Div. 2000) aff’d as modified, 170 N.J. 9, 783 A.2d 707 (2001), holding: “that in vitro fertilization (IVF) contract by which former husband and former wife agreed to relinquish control and ownership of embryos to IVF program if their marriage were dissolved was unenforceable.”

Some secondary source results include:

Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre–embryo, or Pre–zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R.5th 253 (Originally published in 2001)

Erecting Women: Contracting Parenthood From Marriage To Divorce, Rachel Polinger-Hyman, Erecting Women: Contracting Parentenhood from Marriage to Divorce, 2 Hous. J. Health L. & Pol’y 241 (2002)

Disposition of Cryopreserved Preembryos after Divorce, Karissa Hostrup Windsor, Disposition of Cryopreserved Preembryos After Divorce, 88 Iowa L. Rev. 1001 (2003)

Missouri v. McNeely

Docket No. 11-1425

2013 WL 1628934

Respondent was arrested for driving while intoxicated and taken to a nearby hospital for blood testing.  The respondent refused to consent to the blood test, and without attempting to secure a search warrant, the officer directed a lab technician to take a sample.  The trial court suppressed the blood test result on Fourth amendment grounds, and the state supreme court affirmed.

The Supreme Court affirmed the suppression, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  Instead, it is a factor to be considered, along with all other relevant factors, in deciding whether a warrant is required.

Justice Sotomayor delivered the opinion of the Court.  Chief Justice Roberts filed an opinion concurring in part and dissenting in part, in which Justices Breyer and Alito joined. Justice Thomas filed a dissenting opinion.

Kiobel v. Royal Dutch Petroleum

Docket No. 10-1491

2013 WL 1628935

Petitioners filed suit in federal court under the Alien Tort Statute, alleging that respondents–certain Dutch, British, and Nigerian corporations–aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.  The District Court dismissed several of petitioners’ claims, and on interlocutory appeal, the Second Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability.  The Supreme Court granted review and ordered supplemental briefing on whether and under what circumstances courts may recognize a cause of action under the ATS, for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The Supreme Court affirmed the dismissal, holding that the presumption against extraterritoriality applies to claims under the Alien Tort Statute, and therefore the petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.

Chief Justice Roberts delivered the opinion of the Court.  Justice Kennedy filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined.