OrCon Law

"Parentage testing" mandated by ORS 416.430 does not constitute an unreasonable search and seizure

in violation of Article I, section 9 of the Oregon Constitution or the Fourth Amendment.  According to the Court of Appeals in State v. Spring, (Landau, J.), the mandatory DNA test required pursuant to ORS 416.430(5) in the context of a paternity dispute is a search for the purposes of the state and federal constitutions.  However, because it is a "reasonable" search, it does not violate either constitution.

First Amendment likely not offended by enforcement of Veteran's Affairs regulation prohibiting partisan activity on VA property

according to the Ninth Circuit.  In Preminger v. Principi ,(Graber, J.), the court held that the plaintiffs were unlikely to prevail on their claim that the exclusion of plaintiffs from VA premises pursuant to 38 CFR 1.218(a)(14) when plaintiffs attempted to enter the premises to register resident veterans to vote violated the First Amendment.  As a result, plaintiffs were not entitled to a preliminary injunction barring the enforcement of that rule.  The court also held that it lacked jurisdiction to review plaintiffs' facial challenge to the rule because, by statute, the Federal Circuit has exclusive jurisdiction over such challenges.

"Is assisted suicide legal?"

is the question on the table this week at the Legal Affairs Debate Club.  Debating the issue are  Jonathan Adler, a law professor at Case Western University who is a visiting professor at George Mason University this fall, and Wesley Smith, a lawyer and author of Culture of Death:  the Assault on Medical Ethics in America.

Ninth Circuit upholds ban on provision of federal funds for abortion

In Doe v. USA, a unanimous Ninth Circuit panel held that the statute barring TRICARE (the civilian health and medical program for uniformed service) from providing funds for abortions except in circumstances where carrying the fetus to term would endanger the mother's life is rationally related to a legitimate governmental interest and, thus, does not violate the Equal Protection clause.  The plaintiff in the case, a covered tricare benificiary, sought coverage for the termination of her pregnancy when she discovered that the fetus she was carrying was anencephalic.  The court concluded that the case was controlled by the Supreme Court's decision in Harris v. McRae, 448 U.S. 297 (1980).  Interestingly, in its conclusion, the court took the unusual step of "depart[ing] from [its] analysis * * * to express its deepest sympathy for the families who must face this difficult ordeal."

Article I, section 14 of the Oregon Constitution does not bar the use of hearsay evidence at a pretrial release hearing

In Rico-Villalobos v. Guisto, (Balmer, J.), the Oregon Supreme Court concluded:

[T]he text and history of Article I, section 14, and our cases interpreting that provision, place the burden on the state at the pretrial release hearing to present evidence, direct or circumstantial, from which the trial court can make an independent determination that evidence that likely will be admissible at trial shows that the proof of defendant's guilt is "evident" or the "presumption strong"; however, that provision does not preclude the state from making that showing by means of hearsay evidence.

The Sixth Amendment does not bar the use of prior juvenile adjudications as sentencing factors in Oregon,

provided "that when such an adjudication is offered as an enhancement factor to increase a criminal sentence, its existence must either be proved to a trier of fact or be admitted by a defendant for sentencing purposes following an informed and knowing waiver" according to the Oregon Supreme Court in State v Harris, (Carson, C.J.).

Today's constitutional rulings by the Ninth Circuit

The Ninth Circuit issued two constitionally-based decisions today.  First, in Gospel Missions v. City of Los Angeles, the court rejected facial First Amendment vagueness and overbreadth challenges to Los Angeles ordinances regulating the solicitation of charitable donations.  Second, in M & A Gabaee v. The Community Redevelopment Agency, the court ruled that Younger absention applies when the parallel state court proceeding has begun but has "not yet reached proceedings of substance on the merits of the case."  The court rejected the federal court plaintiff's contrary argument, noting that it "contradicts the whole purpose and tenor of the Supreme Court's holdings in Younger and Hicks."

A parent does not have a constitutionally-protected liberty interest in her relationship with her adult child

according to the Eleventh Circuit in Robertson v. Hecksel, decided today.

Advancing the cause of symmetry in constitutional law,

the Ninth Circuit has confirmed that, consistent with the Fourth Amendment, not only can a police officer order a passenger out of lawfully-stopped vehicle, the officer can order a passenger who has voluntarily exited the vehicle to get back into the vehicle.  United States v. Williams.

Judge Michal Marcus Testifies About Sentencing

Douglas A. Berman, Professor of Law at Moritz College of Law at The Ohio State University, and author of Sentencing Law and Policy comments here on the testimony of Oregon Circuit Court Judge Michael Marcus to the U.S. Sentencing Commission in response to its request for public comment on sentencing guidelines.  Prof. Berman also links to articles written by Judge Marcus about how sentences should be determined.  Good reading for lawyers with a criminal law paractice.