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California's emission-control law upheld on 1st test
Headline News | 2007/12/17 15:21
California's first-in-the-nation effort to limit cars' emissions of gases that contribute to global warming took a big step forward Wednesday when a federal judge upheld the state's right to control air pollution and dismissed a challenge by the auto industry. The ruling by U.S. District Judge Anthony Ishii of Fresno also was a victory for 16 other states whose laws or regulations on tailpipe emissions were modeled after California's 2002 statute. The 17 states represent nearly half the U.S. population, and their laws would effectively require automakers to cut greenhouse gas emissions nationwide, despite President Bush's rejection of mandatory national standards.

The California law, however, cannot be enforced without the approval of the Bush administration's Environmental Protection Agency. The state asked the EPA two years ago for a waiver that would allow it to exceed federal clean-air requirements and regulate cars' greenhouse gas emissions starting with 2009 models.

The EPA has never denied California such a waiver, but the agency has been lobbied by auto companies and by Bush's transportation secretary to deny the request. The state has sued the agency to force a decision, and EPA Administrator Steven Johnson has promised to decide by the end of the year.

Ishii's ruling "leaves the Bush administration as the last remaining roadblock to California's regulation of tailpipe greenhouse gas emissions," said state Attorney General Jerry Brown, whose office defended the law.

Gov. Arnold Schwarzenegger signed another groundbreaking law last year seeking a 25 percent reduction in all greenhouse gases emitted in California by 2020. He said Wednesday that with motor vehicles contributing nearly 30 percent of those emissions, "it is imperative that we be granted the fuel waiver from the federal government."

Environmental groups that joined the defense of the state law praised the ruling. The law's author, former Assemblywoman Fran Pavley, a Los Angeles-area Democrat now with the Natural Resources Defense Council, said the decision "affirms California's legal right to clean its air and protect the health of its citizens."

The ruling was the result of a 2004 lawsuit filed by auto industry trade organizations that wanted to overturn the California law. On Wednesday, the auto industry groups were noncommittal on whether they would appeal, apparently awaiting the EPA decision on the state's waiver request. Dave McCurdy, chief executive of the Alliance of Automobile Manufacturers, repeated his group's position that the issue should be off-limits for individual states.

"We need a consistent national policy for fuel economy, and this nationwide policy cannot be written by a single state or group of states - only the federal government," he said.

Ishii, however, disagreed with the auto industry's claim that the state's curb on greenhouse gas emissions amounted to a forbidden intrusion on federal regulation of gas mileage. There is no conflict between the federal government's efforts to improve fuel economy and a state's attempts to protect its residents' health and resources by reducing air pollution, the judge said.

The ruling is the latest in a series of court decisions in favor of states and environmental groups that have argued that laws originally enacted to fight smog can be used against greenhouse gases - carbon dioxide and other fumes from tailpipes and smokestacks that scientists believe cause global warming.

Bush opposes mandatory limits on greenhouse gas emissions and says the nation should address the problem through voluntary industry action and modest increases in fuel economy standards. But in April, over Bush administration objections, the Supreme Court ruled that the emissions are pollutants covered by the Clean Air Act, and that the EPA must regulate them unless it can back a refusal to do so with scientific evidence.

In September, a federal judge in Vermont upheld a state law identical to California's auto emissions statute, a ruling that automakers have appealed. Last month, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that the federal government's new miles-per-gallon standards for SUVs and light trucks were too lax because they failed to account for the effect of fuel consumption on global warming.

The California law requires car manufacturers to lower emissions gradually, to 23 percent below current new-car levels by 2012 and 30 percent by 2016. It does not specify how the reductions are to be accomplished, but the state Air Resources Board says automakers can reach the goals by a combination of improving gas mileage, implementing new technology, using alternative fuels and reducing leaks of greenhouse gases from air conditioners.

The lawsuit by auto trade groups, manufacturers and dealers argued that the California statute conflicts with federal law. The suit contended that the only practical way to reduce greenhouse gas emissions is to increase gas mileage, a subject regulated exclusively by the federal government.

In Wednesday's 57-page ruling, Ishii said California is not directly regulating fuel economy even if its law has the effect of forcing increases in gas mileage.

"The required increase in fuel economy is incidental to the state law's purpose of assuring protection of public health and welfare under the Clean Air Act," Ishii said.

Compliance with the law, he said, "can be at least partially achieved through changes that are not directly reflected in fuel economy improvements," such as using other fuels and improving air conditioners.



Court throws out publisher/freelancer settlement
Lawyer Blog News | 2007/12/17 14:08
An appeals court has thrown out a settlement between freelance writers and publishers such as the New York Times and Dow Jones & Co. The writers had sued these publishers, and others including ProQuest and Knight Ridder, asserting that they had not granted the publishers the right to reproduce their work on the internet or in databases. A panel of Court of Appeals judges voted two to one to conclude that the district court lacked the power to approve the settlement that had previously been reached. This was worth up to $18 million.

Circuit judge Chester Straub said: "The overwhelming majority of claims within the certified class arise from the infringement of unregistered copyrights.

"We have held, albeit outside the class-action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from unregistered copyrights."


Jail former lawmaker, judge asks U.S. court
Court Feed News | 2007/12/17 13:19

Former U. S. Rep. Tommy Robinson would spend six months in jail if a federal district judge agrees with a recommendation outlined Friday in U. S. Bankruptcy Court for the Eastern District of Arkansas.

In overruling Robinson’s request to sue two of his creditors, their attorney and the Chapter 7 trustee in his personal bankruptcy case, U. S. Bankruptcy Judge James Mixon said the threatened lawsuits represented frivolous interference with bankruptcy court proceedings and an attempt to bully those involved in Robinson’s case.

“I think you are in criminal contempt,” Mixon told Robinson, who represented himself after his attorney’s withdrawal from the case earlier this week.

Mixon said he would recommend to U. S. District Court that Robinson serve six months in jail, a sentence that he suspended in April when Mixon found Robinson to be in both civil and criminal contempt of court orders.

Robinson, who served one night in jail as a result of the civil contempt finding, has appealed the April ruling by Mixon to U. S. District Court for the Eastern District of Arkansas, where the matter has been assigned to Judge James Moody.

“You’ve just got to stop filing the same complaint with this court,” Mixon told Robinson.

“You lost,” the judge said, referring to Robinson’s allegations that his two former partners in a Monroe County hunting lodge, Bill Thompson and Boyd Rothwell, had committed fraud.

Robinson said his estranged business partners have “stolen more with a pen than Jesse James stole with a pistol.” In July 2006, Robinson served five days in jail after pleading no contest to charges of second-degree assault and disorderly conduct, misdemeanors that arose from a scuffle Robinson had in a Brinkley barbecue restaurant with Thompson.

Mixon said he had heard “maybe three times” the argument that Robinson’s partners secretly signed an August 2004 agreement with the U. S. Department of Agriculture and personally benefited from the sale of a roughly 2, 500-acre conservation easement for $ 1. 7 million.

“I’ve already ruled against you,” Mixon said. “You’re an intelligent person. Why do you keep raising the same issue over and over ?” Mixon promised to schedule a hearing within 30 days on his latest recommendation that Robinson be found in criminal contempt, “so you will have time to get counsel and present evidence,” he told Robinson.

Mixon denied Robinson’s request Friday that the judge recuse himself from the case, but he said Robinson was free to file a complaint about Mixon with the Judicial Council of the U. S. 8 th Circuit Court of Appeals.

Robinson said last week that he is seeking to remove Mixon from office by filing such a complaint.

Robinson also is free to file a criminal complaint about Thompson, Rothwell and their attorney, Stuart Hankins, with the U. S. Attorney’s Office for the Eastern District of Arkansas, Mixon said.

“I have no jurisdiction over such matters,” the judge said.

Mixon also overruled Robinson’s objection to Trustee Frederick Wetzel’s proposed sale of a city lot in Brinkley that belongs to Tommy Robinson and his wife, Carolyn.

Robinson and his wife were forced into personal bankruptcy in March 2005 by Thompson and Rothwell, and Mixon confirmed the case in September 2005. The following month, in schedules filed with bankruptcy court, Tommy Robinson listed $ 3. 6 million in liabilities and Carolyn Robinson listed $ 3. 4 million. They share many of the same debts, including more than $ 1. 5 million owed to the U. S. Department of Agriculture.

Four companies owned by the Robinsons also have been involved in bankruptcy court. Two were liquidated in 2005 and two others are in the process of being liquidated.

Robinson, 65, was Pulaski County sheriff from 1981 to 1984 and represented central Arkansas’ 2 nd Congressional District from 1985 to 1991. Originally elected as a Democrat, he switched to the Republican Party in 1989 and ran unsuccessfully in the 1990 Republican gubernatorial primary and in the 2002 1 st Congressional District race.

Carolyn Robinson has served on the Arkansas Parole Board since June 2002. Her current term expires in 2013.



Council to vote on Melton's law team
Headline News | 2007/12/17 09:22
The Jackson City Council on Tuesday could vote to hire an outside law firm to represent Mayor Frank Melton in two civil lawsuits.

Melton said he hoped the council would agree to hire Jackson law firm Coxwell & Associates, which represented the mayor earlier this year in a criminal case.

The Phelps Dunbar firm was hired in August to represent the city in four lawsuits in which Melton was named, but in a letter recently recommended that the city hire another firm in two of those cases. Phelps Dunbar's letter said, "a review of the facts thus far leads us to the conclusion that the mayor was acting in a manner beyond the scope of his duties as mayor if the allegations concerning his conduct are true in each of these instances."

Melton has said he was within his duties when he and his entourage damaged a duplex on Ridgeway Street and when he banged on a resident's front door with a shotgun. Both homeowners sued him and the city.

Phelps Dunbar also recommended that the city pay Melton's legal bills, then ask a court to decide if he should repay the money. The mayor, who originally said he would pay his own fees, agrees with the firm.

"(City) legal has said that council has a fiduciary responsibility to (do) that," Melton said Friday.

Phelps Dunbar charges the city $185 per hour and has recommended Coxwell be paid the same. To date, Phelps Dunbar has billed the city for more than $19,000 related to the four cases.

Merrida Coxwell said he was interested in the cases but said he would step away if they generated undue controversy.

"It would save the city of Jackson a little bit of money," said Coxwell, who along with Dale Danks was a member of Melton's criminal defense team in the duplex case. Melton and his body guards were acquitted in that case.

The council on Dec. 7 discussed the lawsuit legal representation issue in closed session but made no decision.



Supreme Court rules on sentences
Legal Career News | 2007/12/16 16:20
Advocates of greater fairness in criminal sentencing won an important battle at the U.S. Supreme Court last week. But they could lose the war if individual judges exploit the decision to return to the bad old days of dramatically divergent sentences for the same crime. By a 7-2 vote in two drug cases, the justices -- reversing federal appeals courts -- upheld sentences imposed by federal district judges that were more lenient than those suggested by guidelines of the U.S. Sentencing Commission. In one case, Brian Gall, who was involved in an Ecstasy ring in college but reformed himself, was sentenced to probation. In the other, Derrick Kimbrough, a veteran of the Persian Gulf War who pleaded guilty to possessing crack and powder cocaine, received a 15-year sentence instead of the 19 to 22 years he would have gotten under the guidelines.

Kimbrough's case had attracted particular attention because it involved a disparity in sentencing for crack and powder cocaine that disproportionately punishes African Americans. The judge in Kimbrough's case rightly had described the 100-1 disparity -- which the commission adopted to reflect a similar formula in an act of Congress -- as "ridiculous."

Coincidentally, the Sentencing Commission, which already had voted to narrow the disparity, decided last week to make the reduction retroactive. That could allow nearly 20,000 inmates to petition for sentence reductions. It will not, however, undo the crack/powder differential contained in a draconian 1986 law establishing mandatory minimum terms for drug offenses. Only Congress can, and should, repeal those provisions.

Still, the court's rulings reflect the national reconsideration of the misguided crack/powder distinction. Unfortunately, they could lead to other sorts of unfairness. To understand why, it is worth recalling why Congress created the Sentencing Commission in 1984. Faced with evidence of wildly different sentences being imposed for the same crime -- some of which seemed to track racial differences -- Congress decided the commission should devise sentences that would reflect several factors: the seriousness of the offense, the defendant's criminal history, and aggravating and mitigating factors. Although the rules adopted by the commission (subject to congressional veto) were called "guidelines," they were for practical purposes mandatory.

Fast forward to 2005, when the Supreme Court ruled 5 to 4 that the 6th Amendment required juries, not judges, to weigh aggravating factors that could increase a convicted defendant's sentence. Therefore, it was unconstitutional to require judges to abide by guidelines based on such factors. But a different 5-4 majority said the commission's guidelines could remain on the books as an "advisory" resource for judges.

In June of this year, the court seemed to shore up the guidelines when it ruled that an appeals court was free to presume that sentences within the guidelines were reasonable. But last week, the pendulum swung back in the direction of greater leeway for the sentencing judge. Although judges must treat the guidelines as a starting point, Justice John Paul Stevens wrote in the Gall case, their greater familiarity with the case entitles them to deference when they sentence outside the guidelines.

Once again, the high court has left lawyers and lower-court judges scratching their heads over how much discretion in sentencing is too much. At least some judges will see the latest rulings as a green light for departures from the guidelines much less defensible than the one in the Kimbrough case. Racial, and regional, differences in sentencing may reassert themselves. A judge might even feel free to act on a personal view that crack cocaine is more dangerous than powder.

No matter how criminal sentences are determined, two traditional notions of justice are in tension with one another. One is that similar crimes (and criminals) should be punished similarly. The other is that justice consists of taking account of the circumstances of a particular case. The sentencing guidelines on which the court cast doubt last week didn't resolve that tension perfectly, but they were an improvement over the pre-guidelines era that mocked the concept of "equal justice under law."


Investors Focus on Housing Data and Fed
Business Law Info | 2007/12/16 16:17
Stock investors smarting from months of volatility are hoping this holiday-shortened week provides signs of a badly-needed yearend rally.

The days leading up to Christmas -- which in recent years have been positive for stocks -- will bring readings on the housing market, minutes from the Federal Reserve's meeting last month, and earnings reports including results from major retailers. The data should keep investors busy as they stare down tumbling home prices, billions of dollars of losses at banks that made losing bets on subprime mortgages, and crude oil flirting with $100 a barrel.

Though the end of the year usually sparks buying, recent developments have made a December rally look like a pipe dream to many market participants, who are simply hoping stocks can hold onto their gains. The Dow Jones industrial average is up 5.73 percent year-to-date, the Standard & Poor's 500 index is up 2.85 percent, and the Nasdaq composite index is up 9.19 percent.

At this point, Wall Street expects the U.S. housing market to keep wilting through next year, and perhaps into 2009. It also assumes financial institutions will be taking another giant round of writedowns during the fourth quarter, one that may be larger than the third quarter's approximately $45 billion in credit-related losses.

What investors remain unsure of is how long it will take the Wall Street banks to bounce back from their losses, and if consumers and the broader economy will survive the worst housing market in decades.

Last week, investors sent stocks higher and lower as they wrestled with uncertainty. The Dow finished last week 1.03 percent; the S&P 500 index ended 0.35 percent, and the Nasdaq finished 0.35 percent.



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