constitutional law

The Pennsylvania Supreme Court has ruled against lifetime registration for juvenile sex offenders, ruling a state law is unconstitutional because the juveniles have no ability to challenge an irrebuttable presumption they are likely to reoffend, the Associated Press reports: "'We agree with the juveniles that (the law)'s registration requirements improperly brand all juvenile offenders' reputations with an indelible mark of a dangerous recidivist, even though the irrebuttable presumption linking adjudication of specified offenses with a high likelihood of recidivating is not ‘universally true,'” Justice Max Baer wrote for the court.

Cornell law professor Michael C. Dorf, writing in a column in Justia, notes how Nebraska and Oklahoma, two of Colorado's neighboring states, are challenging Colorado's law legalizing marijuana in the U.S. Supreme Court. The basis for the Supreme Court's jurisdiction is the part of the federal constitution covering cases in "which a state shall be a party," Dorf notes.

Nebraska and Oklahoma's attorneys general argue that Colorado's pot legalization undermines their ability to "maintain their own prohibitions of marijuana because Colorado takes inadequate measures to prevent legal intrastate marijuana from crossing state borders, where it enters the illegal market." They also argue that Colorado's law violates the federal Controlled Substances Act. But Dorf finds a hole in the two states' argument about the CSA, reasoning that there is no federal preemption of states choosing not to criminalize marijuana.

Instead, he suggests that Nebraska and Oklahoma should sue the federal government for failing to enforce the CSA against third parties.

Elected state attorneys general are playing a new role: refusing to enforce their state's laws, "raising questions about where the line lies between discretion and derelicition of duty," the Pittsburgh Post-Gazette's Tracie Mauriello reports. For example, Pennsylvania Attorney General Kathleen Kane refused to defend a new state law allowing the National Rifle Association to sue over local gun regulations and she refused to defend the state's ban on same-sex marriage. Mauriello cites examples in Indiana, New Jersey and Virginia where attorneys general did not enforce law regarding immigration, guns and failing schools. Professor John C. Harrison of the University of Virginia School of Law told Mauriello, “'It’s probably true that the judgments that executive enforcement officers make about constitutionality of statutes they’re called on to enforce are somewhat influenced by their policy views.”'

U.S. District Judge Robert Chambers struck down West Virginia's ban on same-sex marriage as unconstitutional, the West Virginia MetroNews reports: "'The right to marry is a fundamental right, giving every individual the opportunity to exercise choice in this important relationship. As such, the government must not interfere in that choice unless it demonstrates compelling state interests and carefully tailors its restrictions to protect those interests,"' the judge said.

In contrast, the Sixth Circuit last week upheld same-sex marriage bans under the lowest level of constitutional scrutiny: rational basis. Other courts have often been applying greater constitutional scrutiny in striking down bans on same-sex marraige.

Tennessee voters opted to change the way that judges are selected, The Tennessean's Dave Boucher reports. The constitutional amendment tweaks the state's judicial selection process from one in which the governor appoints judges to one in which judges, after appointment by the governor, must be approved by legislators and face judicial retention vote from the general public vote every eight years.

Control of the Tennessee appellate courts has been heated this year. Three Democratic justices on the Tennessee Supreme Court were retained in the most expensive judicial campaign in the state's history. Republican Senate Speaker Ron Ramsey funded much of the effort to oust the justices. According to the AP, Ramsey promised to push for popular elections for judges if the constitutional amendment failed.

Alabama voters passed an amendment barring judges from using foreign law when "doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” Eugene Volokh blogs that the amendment is not really banning foreign law. Alabama judges can use foreign law in "tort cases arising from injuries in foreign countries, determining the family status of people who were married or adopted children in foreign countries, and more," as well as applying religious law, such as Sharia, when applying the foreign law of a country that incorporates Sharia into its legal system, Volokh says.

Eugene Kontorovich, writing on the Volokh Conspiracy blog, comments that constitutional challenges to mandatory Ebola quarantines are unlikely to succeed. Lawyers for Kaci Hickox, a nurse forcibly quarantined by New Jersey after treating Ebola patients in West Africa, claimed she was deprived of her liberty in violation of the due process clause of the 14th Amendment. But Kontorovich says "brief review of the cases suggests it extremely difficult to challenge such an action without a clear showing of medical unreasonableness, or discriminatory application. Indeed, I found no cases in which a quarantine has been lifted due process grounds (though there have been some successful challenges to conditions of quarantine)."

Hickox's quarantine was reversed by New Jersey Gov. Chris Christie today, USA Today reports. She will now be quarantined at her home.

The Arkansas Supreme Court struck down a state law requiring voters to show photo identification before casting their ballots, the AP reports. The Supreme Court said the requirement was unconstitutional because the "Arkansas Constitution lists specific requirements to vote: that a person be a citizen of both the U.S. and Arkansas, be at least 18 years old and be lawfully registered. Anything beyond that amounts to a new requirement and is therefore unconstitutional, the court ruled."

Tennessee voters will be deciding whether to keep the state's method of selecting appellate judges, the Associated Press reports. Under a "merit selection" system, the governor makes appointments to fill vacancies on the state's appellate courts and voters then decide whether to keep the judges and justices in retention elections. A proposed constitutional amendment would allow legislators to reject the governor's nominees.

Control of the Tennessee appellate courts has been heated this year. Three Democratic justices on the Tennessee Supreme Court were retained in the most expensive judicial campaign in the state's history. Republican Senate Speaker Ron Ramsey funded much of the effort to oust the justices. According to the AP, he will push for popular elections for judges if the constitutional amendment fails.

After protests started following Michael Brown's shooting in Ferguson, Mo., by a police officer, police told protestors they had to keep walking and they couldn't keep still. Now U.S. District Judge Catherine Perry has issued a preliminary injunction to stop police from enforcing a practice she found to be unconstitutional, CNN reports: "In some cases, officers told protesters they couldn't stand still for more than five seconds. In others, the protesters were told they were walking too slowly."