OrCon Law

Ninth Circuit holds federal partial birth abortion ban unconstitutional

Joining all other federal courts to have considered the issue, the Ninth Circuit, in Planned Parenthood v. Gonzales has held that 18 U.S.C. section 1531, the federal ban on partial-birth abortions, is unconstitutional.

Ninth Circuit Upholds Sign Code

The Ninth Circuit today upheld the Lake Oswego sign code against facial and as-applied challenges to its constitutionality arising under the first amendment.  The code prohibits pole signs but had a grandfather provision that applied to one or a very few signs.  The case is at: G.K.LTD Travel v City of Lake Oswego. 

The decision may not break new ground, but answers the federal questions about regulation of expression.  The same questions will present different issues when and if they are raised under the state constitution in a post-Ciancanelli world.

Congress acted within its Foreign Commerce Clause authority

when it enacted a statute making it a felony for a U.S. citizen to travel to a foreign country and then engage in an illegal commerical sex act with a minor.  United States v. Clark (9th Cir. Jan. 25, 2006).

The Bankruptcy Clause "abrogates" state sovereign immunity

according to the 5-4 majority in today's Supreme Court decision in Central Virginia Community College v. Katz.  In holding that states are not immune from suits by bankruptcy trustees to recover preferential transfers, the Court (Stevens, J.) concluded that it did not matter whether Congress had validly abrograted states' sovereign immunity because immunity had been "abrogated" by the Bankruptcy Clause.  The court based its conclusion on an extensive historical analysis of the Bankruptcy Clause.

Justice Thomas dissented, joined by Chief Justice Roberts and Justices Scalia and Kennedy.  He argued that the majority opinion turns the Court's recent sovereign immunity jurisprudence on its head.l

Does the President have inherent constitutional authority to authorize domestic wiretaps?

Not surprisingly, according to the president's lawyers, he does.  Yesterday, the DOJ issued this memorandum ( Download dojnsa11906wp.pdf ) defending the president's power to authorize domestic wiretaps.  Among other things, the memorandum concludes that the authorization of such wiretaps is within the president's "inherent constitutional authority" and that the Fourth Amendment warrant requirement does not apply to NSA activities because those activities constitute a "special needs" situation.

Supreme Court concludes physician-assisted suicide is not barred by the CSA

In a 6-3 decision, the Supreme Court held that the federal controlled substances act does not bar physician-assisted suicide, as authorized by Oregon law, and that the Attorney General's interpretive rule construing the CSA to prohibit the practice was, consequently invalid.  Gonzales v. Oregon.  Kennedy authored the majority opinion; Scalia, Thomas, and Roberts dissented, arguing that the Attorney General's interpretation was reasonable.

An Interseting View of Precedent

Alabama Supreme Court Justice Tom Parker offers an unusual view of the value of precedent (at least precedent he disagrees with) in an op-ed published in the Birmingham News.  Here is a portion:

State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."

After all, a judge takes an oath to support the constitution -- not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism, and a changing U.S. Supreme Court membership makes such resistance more likely to bear good fruit.

While lower courts have been known to “tee-up” issues for appeal, one can only wonder what chaos would follow if all judges applied this rule all the time.  The opinion should also help refine the definition of "judicial activism" by holding up a mirror to all who use the term, no matter what their political or judicial philosophy.  The whole op-ed is at: http://www.alliancealert.org/2006/20060106.htm

Thanks to Howard Bashman for pointing this opinion out on his blog, HowAppealing

Measure 37 Supreme Court Hearing

The Oregon Supreme Court will hear the direct appeal in MacPherson v. Dep't of Admin. Servs., the Measure 37 land use case, at 1:15 p.m. on January 10, 2006.  Seating is expected to be extremely limited.  For those who cannot make it into the courtroom, the hearing can be seen and heard live on the web:  http://www.leg.state.or.us/listn/today_video.htm.