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Supreme Court Upholds Budget Bill
Legal Career News | 2007/12/11 09:24
A consumer-rights group's challenge to a deficit reduction law ended Monday when the Supreme Court let the law stand, even though the House and Senate never approved identical versions.

The justices, without comment, refused to disturb lower court rulings dismissing Public Citizen's lawsuit contesting the validity of a $39 billion deficit-reduction bill that passed the House and Senate in slightly differing versions.

The controversy arose in February 2006 after the House passed a version of the bill that was not identical to the Senate-passed measure. Both houses of Congress were under Republican control at the time.

Ordinarily, one chamber would vote again to eliminate the discrepancy. But the vote in the House was 216-214, too close to risk another vote.

Republicans who were in charge in the House refused Democrats' demands for a new vote. Instead, Republican leaders in the House and Senate signed off on the legislation and sent it to President Bush, who signed it into law on Feb. 8.

The provision at issue involved how long Medicare pays for renting some types of durable medical equipment. The Senate voted for 13 months, as intended by Senate and House negotiators, but a Senate clerk erroneously put down 36 months in sending the bill back to House for a final vote. That's what the House approved Feb. 1.

By the time the bill was shipped to Bush, the number was back to 13 months as passed by the Senate.

Lower courts dismissed Public Citizen's lawsuit based upon a 1890 case in which the court held that judges are obliged to accept as accurate legislation that has been signed by the leaders of both houses of Congress. An occasional mistake, or even fraud, is better than the uncertainty that would flow from routine questioning of bills passed by Congress, the court said then.



Court: Prison Program Unconstitutional
Legal Career News | 2007/12/04 17:12
A federal appeals court ruled Monday that the state of Iowa cannot fund an evangelical Christian prison ministry program because doing so advances or endorses religion, violating the Constitutional separation of church and state. The 8th U.S. Circuit Court of Appeals upheld U.S. District Judge Robert Pratt's June 2006 ruling that a Prison Fellowship Ministries Inc. program at the Newton Correctional Facility was unconstitutional if paid for with taxpayer dollars and should be shut down.

Barry Lynn, executive director of the Washington-based advocacy group Americans United For Separation of Church and State, which brought the lawsuit, said the ruling would have major implications for the Bush administration's policies of allowing faith-based groups to offer services to government institutions.

"This is an enormously significant case on the whole question of how government can, or in this case, cannot aid religious ministries," Lynn said.

"I think this has implications far broader than a prison in a single state because the basic framework of this decision, the way they reached the conclusion is that government can't pay for these religious social services nor can they turn over functions of government essentially to religious operations," he said.

Prison Fellowship Ministries, which contracts with InnerChange Freedom Initiatives Inc. and other organizations to conduct faith-based programs, must repay about $160,000 to the state for money received between June 2006 and June 2007, said Mark Early, the group's president.

He said the ruling would clarify how faith-based programs could work with government agencies.

"We're pleased because in this opinion there are some clarifying guidelines to help us and other faith-based organizations working in government settings, such as prisons, to be able to fashion a program and make sure they do comply with current understanding of constitutional law in this area."

Prison Fellowship operates nine programs in six states: Iowa, Arkansas, Kansas, Minnesota, Missouri and Texas. All are now privately funded through donations from individuals and foundations, he said.

The 24-hour a day, seven-day a week program at Newton immerses inmates in evangelical Christianity. Inmates who complete the 18-month program also get help after they're released from prison.

Fred Scaletta, a spokesman for the Iowa Department of Corrections, said corrections officials were reviewing the ruling with the attorney general's office to determine how the state would proceed with the operation of the program.

Bob Brammer, a spokesman for the Iowa attorney general's office, said attorneys were reviewing the ruling and considering whether to appeal.

An appeal could include asking the three-member 8th Circuit panel for clarification on issues or could seek consideration by the full 8th Circuit Court. The ruling also could be appealed to the U.S. Supreme Court.



Supreme Court to Hear Maine Internet Case
Legal Career News | 2007/11/28 13:57
The Supreme Court will consider today whether federal law bars Maine from imposing handling requirements on delivery companies, a case that could undercut similar laws in other states. When Maine officials tried to crack down on Internet tobacco sales to children, the outcry from shipping companies that bring cigarettes to consumers' homes was deafening. The companies must comply with onerous delivery and labeling instructions to ensure that buyers are at least 18 years old, the companies complained.

The Maine attorney general's office argues that the state must protect the health of its children and that Internet and telephone sales of tobacco products have become a serious problem.

Two lower courts ruled against Maine. But if Maine officials prevail in the Supreme Court, "any number of states will impose different standards on any number of different products that they deem unhealthy or unsafe," say the three New England transportation company associations that filed suit.

Intricate national delivery networks have been able to speed $6 trillion worth of packages to their destinations every year because Congress mandated that cargo carriers not be subject to an inefficient patchwork of state laws, the shipping companies argue.

Like other states, Maine has imposed steep increases in cigarette taxes. So smokers nationwide increasingly are going online for bargains, and underage smokers are among them, according to anti-smoking groups.

A 2002 study concluded that Internet vendors sold 400 million packs of cigarettes annually, 2 percent of the cigarettes consumed in the United States, a figure that anti-smoking groups say is growing.

The number of Internet cigarette vendors has risen sharply from 88 in January 2000 to 772 in January 2006, says Kurt Ribisl, an associate professor at the University of North Carolina's school of public health who has spent the past eight years studying the issue.

"This is big business for some of the companies," said Dennis Eckhart, head of the tobacco litigation and enforcement section of the California attorney general's office. "Similar laws in several other states definitely would be at risk if the Supreme Court does not rule in favor of the state of Maine."

Ribisl says the number of Internet Web sites selling tobacco products has leveled off in recent years. At least 40 states now prohibit or severely restrict the direct delivery to consumers of tobacco products purchased from Internet vendors, state attorneys general said in a filing supporting Maine in the case. In addition, credit card companies and several major shipping companies have agreed to cease payments and cease shipping for Internet cigarette sales.

The delivery companies say they are burdened by a patchwork of widely varying state requirements.

Under the Maine statute, delivery companies must check packages against a list from the state attorney general of known unlicensed tobacco retailers. They must deliver only to the person to whom the package is addressed and a recipient under age 27 must present identification.

"Worthy motives are not enough" to uphold Maine's law, a federal judge decided in 2005.

If there is to be regulation in this area, it will have to come from the federal government, the judge ruled.



Court Won't Review San Diego Home Hunts
Legal Career News | 2007/11/26 13:42
The Supreme Court rejected a challenge Monday to a county's practice of routinely searching welfare applicants' homes without warrants and ruling out assistance for those who refuse to let them in. The justices refused, without comment, to intervene in the case from San Diego County, where investigators from the local District Attorney's office show up unannounced at applicants' homes and conduct searches that include peeking into closets and cabinets. The visits do not require any suspicion of fraud and are intended to confirm that people are eligible for government aid.

Failure to submit to the searches, which can last an hour, disqualifies applicants from assistance.

The 10-year-old program was challenged by the American Civil Liberties Union on behalf of six single parents who were seeking assistance. The welfare applicants argued that the Fourth Amendment, which prohibits unreasonable searches, protects them from the home visits.

"When the investigator conducts the home inspection, no part of the home is off-limits," they said.

The 9th U.S. Circuit Court of Appeals, upholding the program, said the Supreme Court in 1971 allowed social workers to visit homes in New York to determine eligibility. The appeals court, in a 2-1 decision, said the visits do not even constitute a search under the Fourth Amendment in part because people are free to turn away the investigators.

In dissent, however, Judge Raymond Fisher said it was unlawful for an investigator from the district attorney's office to go "walking through the applicant's home in search of physical evidence of ineligibility that could lead to criminal prosecution either for welfare fraud or other crimes unrelated to the welfare application."

The local government said the high court should not step in.

"No applicant has been prosecuted for welfare fraud based upon anything observed or discovered during a home visit that contradicted information provided by the applicant," the county said in its brief for the Supreme Court.

Eight appeals court judges voted to have the full San Francisco-based court hear the case. Seven of those judges called the program "an attack on the poor."



Ellison files brief in Supreme Court voter ID case
Legal Career News | 2007/11/16 11:25
Minnesota Congressman Keith Ellison has filed a brief with the Supreme Court in a voter ID case. The Minnesota Democrat is asking the court to strike down an Indiana law that requires people to have a photo ID to vote, arguing it disenfranchises black voters.

This is Ellison's latest effort to make his mark on voting rights issues.

Last month, the freshman congressman introduced legislation that would ban the ID requirement in federal elections.

Ellison filed the brief with the support of all of the members of the Congressional Black Caucus, including presidential candidate Barack Obama, a Democratic senator from Illinois.

In the brief, Ellison argues that the tax violates the 24th Amendment's ban on poll or other taxes to vote.



First U.S. Law Firm Creates Sustainability Officer Job
Legal Career News | 2007/11/13 12:19

In recent years, sustainability officers have been hired by corporations and universities, foundations and government agencies to manage their relationships with the environment on many levels - ecological, social, economic, policy and political, and governmental.

But law firms? No.

Until now.

The international law firm Nixon Peabody LLP today announced the appointment of a chief sustainability officer. Carolyn Kaplan, an attorney in the firm's energy and environmental practice, will serve in the new role.

Nixon Peabody is the first in the legal industry to establish such a position, although many of the firm's clients and global industries have done so as part of corporate commitments to sustainability.

"This new position reflects our commitment to implement sustainable principles at every opportunity in our firm. We are supporting the commitment to sustainable practices that our clients are adopting and implementing," said Harry P. Trueheart III, chairman and managing partner of Nixon Peabody.

"I'm proud to serve in this new role at Nixon Peabody," said Kaplan. "In addition to improving our own performance, I believe we can assist our clients to achieve their business goals while attaining the best environmental result."

In her new role, Kaplan will work closely with Nixon Peabody's operations director to further reduce the firm's carbon footprint and implement internal green initiatives, as well as to look for opportunities to partner with clients and potential clients on joint sustainability activities.

While serving as chief sustainability officer, Kaplan will continue her legal practice in energy, environmental and land use law. Kaplan also co-chairs the firm's Renewable Energy Team and has assisted clients on a variety of renewable energy projects, including the siting of land-based and offshore wind facilities.

Nixon Peabody has been fostering sustainable business practices. Earlier this year, the firm announced the opening of its first green office in San Francisco which is a model of sustainable design, green building techniques, and a healthy work environment.

The office has been certified by the U.S. Green Building Council under the program for Leadership in Energy and Environmental Design, LEED, making Nixon Peabody the first law firm in the United States to be LEED certified in the category of Commercial Interiors.

In the coming months, other Nixon Peabody offices will also pursue LEED-certification.

All of the firm's offices are implementing sustainability programs, adopting waste minimization practices, switching to eco-friendly building materials and cleaning products, and identifying other ways to reduce the firm's carbon footprint.

With 700 attorneys collaborating across 25 major practice areas in 17 office locations, Nixon Peabody is one of the largest law firms in the United States and is recognized by American Lawyer Media as a "Global 100" firm.

Nixon Peabody has been recognized by FORTUNE magazine as one of its "100 Best Companies To Work For" in 2007 for the second consecutive year. The firm has also been named to the Human Rights Campaign's 2007 "Best Places To Work For GLBT Equality" list.



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