Fire Up the Minivan (and Other Highlights)

Recent federal appellate highlights:

Fire Up the Minivan
Costco is already at the Supreme Court, the petitioner in a trademark case to be argued in November.  Last week, Wal-Mart also arrived, albeit only at the certiorari stage, with a petition challenging certification of a million-member (or more) class.  Plaintiffs in the case, female Wal-Mart employees, allege gender discrimination.  Both the Costco and Wal-Mart cases come from the Ninth Circuit.

Court as Amicus?
Not exactly, but close.  Last week, the Arkansas Supreme Court issued a press release stating that it not only "supports," but had "requested" an amici brief filed by the Arkansas attorney general with the Eighth Circuit.  The brief, joined by four other attorneys general (all from Eighth Circuit states), supports a petition for rehearing en banc. 

The Eighth Circuit recently struck down, as unconstitutional under the First Amendment, Minnesota rules that ban judicial candidates from directly soliciting campaign funds and endorsing other candidates.  Arkansas has comparable rules, which its high court views as "imperative in maintaining the appearance of and actual fairness and impartiality in our courts."  The press release and brief are linked here.

Previous coverage of cases and issues related to electing judges is here (see "The Ballot Box") and here (Justice O'Connor's initiative).

Just So You Know
Recently, the federal government made two DC Circuit filings, informing the court of what it will not be doing.  First, the government will not go forward in the near future with prosecuting the alleged orchestrator of the USS Cole bombing, who is being held at Guantanamo, though the ten-year anniversary of that attack approaches.  Perhaps, as the Washington Post reports, citing a military source, the administration first wants civilian trials for other prominent Guantanamo detainees to be on the horizon.

Second, the government will not meet its target date for releasing final ozone standards (release not legally required then; new estimate is end of October).  The delay may simply reflect more work to be done, as the filing states, but may also cabin the controversial issue during the election season, according to a New York Times article.

Highlights and Trends

For the most recent federal appellate headlines, click here (AD's Twitter home page).

As a follow-up to Tuesday's Short Circuits, below are recent highlights and trends from the federal appellate courts:

The Big Apple Tax
Last week, the Second Circuit upheld a State Department notice that exempts foreign countries from local, in this case New York City, property taxes on diplomatic staff residences in buildings the countries own.  The Supreme Court ruled on the case before in 2007 (re: jurisdiction) and an appeal is expected.

Stolen Valor Act
Also last week, the Ninth Circuit declared unconstitutional the Stolen Valor Act, which makes it a crime to lie about receiving military honors.  A local California water official claimed to have been a marine and recipient of the Congressional Medal of Honor; neither was true.  (He also claimed to have played for the Detroit Red Wings, among other lies, according to the opinion.)  The court found that though "society would be better off if [the defendant] would stop spreading worthless, ridiculous, and offensive untruths," the Act goes too far and violates free speech.  AMVETS, a veterans organization, spoke out against the decision, calling it "appalling and misguided."  In the Tenth Circuit, prosecutors are considering an appeal from a Colorado federal district court decision that also found the Act unconstitutional.

Highlights and Trends

As a follow-up to Tuesday's Short Circuits, below are recent highlights and trends from the federal appellate courts, including a circuit split:

GPS Surveillance
In the past two weeks, both the Ninth and DC Circuits ruled on warrantless GPS tracking and whether it violates the Fourth Amendment.  The Ninth Circuit said no (in denying rehearing en banc), while the DC Circuit said yes.

According to the New York Times, "Supreme Court review of the [DC Circuit] decision seems likely" because it departs from the Ninth Circuit, as well as the Seventh and Eighth.  Though breaking from the pack, the DC Circuit decision was unanimous.  The Ninth Circuit en banc denial, in contrast, included a spirited dissent from Chief Judge Alex Kozinski, joined by four other judges, calling warrantless tracking "creepy and un-American" and making class references ("When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep.  But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy . . . .").