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The District Court in Florida recently declared the new Health Care Law unconstitutional. Of course, this decision will still need to be appealed to the Court of Appeals and the Supreme Court, but the Judge carefully outlined the reasons for his declaration in the written opinion. Although I would have listed a few more reasons, I was impressed with some of the rationales he listed. I especially liked the fact that he went back to the actual language in the Constitution as it was intended when written. I know that is not the popular way to interpret the Constitution, but it does make sense. To summarize: Interstate commerce means interstate trade. Trade means the movement of goods in exchange for money. Insurance does in no way fall within this category. Insurance is a service, not a physical product which can travel in a truck on I-35 between Texas and Illinois. Basically, despite all of the reasons you may have heard about why this law is unconstitutional, the best one is the simplest one: it is not authorized under Section 1 Article 8 – the section which grants Congress the power to pass laws. The powers in this Article were enumerated in order to LIMIT federal government. As you can imagine this was a huge concern to our founding fathers.
There has been some talk of repealing the Health Care Act, but I hope this doesn’t happen. I would like to see the Supreme Court rule on this issue. If they do interpret the Constitution the way it was intended, they will find that Congress did not have the authority to pass this Act and it would open the door for States to bring other lawsuits concerning federal laws outside the purview of Article 1, Section 8, of the Constitution. I can envision California taking on the establishment of the DEA, for example, or the passing of laws that criminalized the possession of marijuana and made it a federal offense under the Commerce Clause. (Remember, police power is reserved to the States so the only way these laws could be passed and these agencies established was through a tenuous connection to interstate commerce. Of course, the commerce clause wasn’t intended to criminalize trade. Well, at least the sale of marijuana would fall under the definition of trade. The problem is that on the one hand Congress wants to force citizens to buy the services of for-profit corporations and on the other wants to prevent citizens from purchasing a plant. Neither type of law is authorized in the Constitution. Of course, our founding fathers were not averse to marijuana – it is believed that George Washington grew hemp on his farm.)
The bottom line is that the federal government has gotten out of control of the people. It is no longer acting as a government for the people, but rather as a government for more government. Congress is passing laws in areas beyond what the Constitution permits. This is not a right v. left issue or a liberal v. conservative issue. It is simply a matter of whether or not the States are going to permit the Federal government to continue down this road. It is up to us as citizens to elect state officials who will stand up to federal encroachment. The best way to get our country back and our economy out of the gutter is to vote. Vote in your state elections – they really matter.

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Another case I recently commented on has been decided. The Arkansas Mom who made comments on her son’s Facebook page as though he had made them and then changed his password so he could no longer access his account was convicted of misdemeanor harassment on May 27, 2010. The Judge ordered the Mom to pay a $435 fine and attend anger-management and parenting classes. The comments on my previous post seemed to indicate that most felt it was not ok for parents to add or delete content from their children’s facebook account. Given that this mother in particular did not have custody of her son, used profanity with him and on his page, and changed his password; I stick with my first impression that this mother has problems with communication. I have a daughter with a Facebook account. When I see something on there that I think may present an issue, I call her attention to it and explain how others may view it. I leave it up to her whether or not to remove or change it, but the important part is I talk to her about it. Children sometime make decisions or post things impulsively and then forget about them. Most children will understand if you explain to them why their posting may not be appropriate. If this mother had truly wanted to “exercise supervision over her son’s Internet activities” as she claimed, there are a lot better ways to do it. I am happy this Judge explained to this woman why her actions were so inappropriate – he parented her well.

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In the Supreme Court case of Renco V. Lett, No. 09-338 (decided May 3, 2010) the Court held that no double jeopardy occurred when the defendant was retried on a murder charge after his first trial resulted in a hung jury. Despite the short amount of time the jury spent deliberating (4 hours), seven questions were sent to the Judge. It seems that the defendant was trying to indicate that because the Judge did not force the jury to go back and deliberate until they reached a verdict, the benefit of the doubt should go to him. In other words, he believed that the jury would have dismissed the case or decided on a guilty verdict for a lesser charge if they had been forced to deliberate more. The flaw here is that he didn’t object to the hung jury at the first trial, but at the second – where the jury found him guilty in less than 4 hours. It seems the Supreme Court was correct in affirming the Michigan State Supreme Court’s determination that the defendant’s rights were not violated and double jeopardy had not occurred.

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I am very interested in following the Arkansas case of a 16-year-old boy who filed a complaint with the police resulting in a misdemeanor charge of harassment against his mother for making changes on his Facebook account and then changing his password so he could no longer access it. A similar issue has come up a few times in other contexts around here. A friend of mine has a daughter who goes on to his Facebook account and writes flattering comments about herself as though her Dad had posted them. It is very cute – and very obvious. Another friend got angry with her son who had gone on to her Facebook account and deleted all of the pictures she had posted of him because he didn’t like the pictures. His Mom reposted them and changed her password. I felt uncomfortable with this. Should children have the right to prevent photographs of them from being accessible on the internet? In the original case, I should mention that the Arkansas mother does not have custody of her son and removed content from his account because she didn’t like it. The fact that she essentially locked him out of the account by changing his password indicates that she is not very adept at communication. Rather than speaking with him about the appropriateness of the posts, she simply deleted them. Would you go into your teenager’s Facebook account and modify it? Would you change the password to keep him out? Under what circumstances? If you are a teen, would you go into your parent’s Facebook account and make changes or delete photos or references to you that you did not like? From a legal perspective there is something called criminal impersonation (which requirements vary from state to state), but essentially impersonating someone can be a crime under certain circumstances. If someone were to go onto your Facebook account and make changes, how would you respond?

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You’ve probably seen the barrage of commercials for the BRCA (pronounced “brack”) test for women. It tests for the BRCA gene which indicates that a woman is 3 to 7 times more likely than the rest of the population to develop breast cancer. Last week a New York federal court invalidated the patent held by Myriad Genetics for this BRCA gene. Essentially, by establishing ownership of the gene through the US Patent and Trademark Office, Myriad has successfully prevented all others from testing for this mutation in the human body since 1996. The fact that the patents were granted for genes and gene mutations in the first place is very questionable. The ACLU sued Myriad Genetics on behalf of several patients and research scientists because the company’s ownership of two gene mutations resulted in women being unable to obtain a second opinion because only Myriad could perform the test. It also prevented scientists from further studying the gene. This decision puts other patents on genes in jeopardy (the ACLU estimates that some 2000 patents are currently held by private corporations on human genes). Although it is likely that this decision will be appealed, as Myriad is making $3,500 – $4,000 a pop on the test, in my opinion equity requires that genes and gene mutations be excluded from protection so that women may receive proper testing before undergoing radical preventative surgery. Corporations have no business owning any portions of the human body for any reason.

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Disney acquired Marvel Entertainment last year for quite a chunk of change. One of the most important assets of Marvel is its superhero collection, many of which were developed by Jack Kirby who has since passed away. The heirs of Kirby sent out a notice of copyright termination under Section 304(c) of the Copyright Act to both Marvel and Disney to have the copyrights in their father’s work revert to them. The Copyright Act permits the heirs to terminate the copyrights effective 56 years after the establishment of the copyright – which apparently occurred between 1958 and 1963 when the comics were originally published. On the west coast, Kirby’s children have asked the court for a declaratory judgment acknowledging the validity of the termination notices, spelling out the profit sharing going forward on any co-owned works, the return of their father’s original artwork, and to give their father credit for the movies based on his creations (The Incredible Hulk and X-Men Origins) in the case of Kirby v. Marvel, et. al. SACV10-00289 CJC (C.D. Cal. 2010). On the east coast, in the case of Marvel v. Kirby, 2010-cv-141, (S.D. NY 2010), Marvel is suing the heirs to have the notices declared invalid. Although Marvel claims that its relationship with Jack Kirby was a “work-for-hire,” the heirs allege that Kirby worked out of his home without a written agreement. If this is true, the relationship was most definitely not a work for hire situation. A work-for-hire requires either an actual employment relationship or a written agreement transferring the ownership in works created by an independent contractor. Since Marvel could have easily disposed of both cases by presenting a copy of such a written agreement or proof of employment, one can assume that they are unable to document their position. Since I can’t imagine that Disney was unaware of the ability of Kirby’s heirs to terminate the copyright, my guess is that as a part of the $4.3 billion dollar transaction, Marvel agreed to indemnify Disney for these claims by Kirby’s heirs. (To indemnify means that Marvel will defend Disney at Marvel’s cost and be responsible for any damage award against Disney). This is why Marvel filed the suit instead of Disney. Regardless, the Kirby children have requested a jury trial. When the jury hears how much Marvel made off of Kirby’s work, someone will need to get their checkbook out. Something tells me it won’t be Disney.

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Does telling a suspect that “You have the right to talk to a lawyer before answering any of our questions” and “You have the right to use any of these rights at any time you want during this interview” mean the same thing as “You have the right to an attorney during questioning?”

In the case of Florida v. Powell decided February 23, 2010, the U.S. Supreme Court reversed the Florida Supreme Court’s holding that the statements made by the police were misleading because they seemed to imply that the suspect only had a right to an attorney prior to the interrogation.  The case of Miranda v. Arizona (1966) requires that a suspect must be clearly warned prior to any questioning that he has the right to consult with a lawyer and to have the lawyer present with him during interrogation.

The Supreme Court stated that the exact warning given did satisfy the requirements in Miranda. The Court declined to prescribe any exact phraseology. What are your thoughts? Do you believe the statement “You have the right to use any of the rights at any time you want during this interview” is clear enough to inform a suspect that he or she can have an attorney present during an interrogation? Why or why not?

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In Salazar v. Buono, 08-472 (Supreme Court 2008 – not yet decided) the lower court held that the presence of a Christian cross located on land owned by the federal government was an unconstitutional endorsement of religion. The original cross had been erected in 1934 by the Veterans of Foreign Wars in remembrance of those who died. The original case was brought by a former National Park Service employee who felt that displaying the cross on public lands without other religions represented was offensive. In an attempt to get around the Establishment clause issue, Congress declared the cross a national monument and then attempted to exchange the parcel on which it was located for another so that the memorial would not be located on federal property. The lower court disallowed this as well.

Unlike Citizens United (see previous post) where the Supreme Court took a very limited issue and expanded it beyond recognition, in Salazar, the Supreme Court reduced this potentially far-reaching decision and limited their questioning on oral argument to whether the government had the right to exchange the parcel to allow the cross to stay where it was.

While Scalia suggested that the cross was a war memorial, and Alito implied that the Congress’ actions had solved the Establishment Clause issue, the rest of the Justices seemed focused on whether Congress even had the right to exchange the parcels under these circumstances. Had Souter remained on the court, it is likely he would have objected to the war memorial as being a religious symbol. It will be interesting to read the decision when it comes out and see what Sotomayor has to say, if anything.

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Copyright 2009 Kimberly A. Houser

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