February 23, 2007
Then-existing Statute of Limitations Held to Apply to 1964 KKK Killing. There's an article here about the court's decision, which held that a 1972 5 year statute of limitations to federal kidnapping charges did not retroactively repeal the earlier statute, which had no limit.
35 USC 271(f) Oral Argument Before Supreme Court. You can read the transcript here. I posted about related issue down below.
Porn Statutes - Including "Forced Labor" Statutes - More Often Enforced by Bush. There's an article here about a pretty, um, I think, unusual S&M case and porn prosecutions.
Speaking of Forced Labor: Mississippi Legislature to Require State Farm to Underwrite There. There's an article here about the legislation.
Texas Seeks Return to Old West. The Texas legislature, no doubt inspired by Florida, apparently wants a "shoot first, ask later" approach to the use of deadly force. Read about it here.
Editorial about Gitmo Decision. Will the Dems make habeas available to all, or will hearsay and secret evidence be enough to keep someone jailed for life? (Seems like a strange question to ask!) There's an editorial here.
February 22, 2007
In case you have been under a rock
You can read about the Gitmo decision here. A year from now, we'll have the final word.
February 20, 2007
New SCOTUS Opinion Lawrence v. Florida
In Lawrence v. Florida __ US __ (Feb. 20, 2007), the supreme court analyzed whether the one-year statute of limitations for habeas petitions was tolled during the time when a petition for certiorari is pending in the Supreme Court. The court held it did not.
The tolling statute provides: “The time during which a properly filed application for State post-conviction or other collateral reviewwith respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” §2244(d)(2). Thus, the majority reasoned that the question was whether an “application for State
Five justices (opinion by Thomas) held that the 1-year statute of limitations isnot tolled during pendency of cert petitions in the Supreme Court. The majority reasoned that when "read naturally" the period was tolled only when an application was pending in state court. The court also relied on, essentially, the doctrine of in pari materia, to uphold its conclusion.
Four justices dissented (opinion by Ginsburg). The opening paragraph of the dissent states:
The Court today concludes that an application for statepostconviction review “no longer exists”—and therefore is not “pending”—once it has been decided by a State’s high-est court. Ante, at 4. What remains, the majority reasons, is a “separate” certiorari proceeding pending before this Court. Ibid. But petitions for certiorari do not exist in avacuum; they arise from actions instituted in lower courts. When we are asked to review a state court’s denial of habeas relief, we consider an application for that relief—not an application for federal habeas relief. Until we have disposed of the petition for certiorari, the application remains live as one for state postconviction relief; it is not transformed into a federal application simply because thestate-court applicant petitions for this Court’s review.
February 19, 2007
Washington Supreme Court Splits on "Accounts Receivable"
Wow, what an interesting case. In Tingey v. Haisch, 2007 WL 474084, __ P.3d __ (Wash. 2007), a majority of the Washington Supreme Court reversed an appellate court's decision interpreting an amendment to Washington's statutes of limitation. It's a fascinating read, particularly in light of the strong dissent, and it raises a variety of issues.
Boiled down, prior to 1989 Washington had a 3 year statute of limitations for oral contracts and a 6 year statute for written ones. In 1989, however, the legislature carved out from the 3 year statute oral contracts based on "an action upon an account receivable incurred in the ordinary course of business...." In Tingey, a lawyer filed suit based on an oral contract for legal services more than 3 years, but less than 6 years, after breach. The question was: is the payment for legal services an "account receivable" and so not subject to the 3 year statute for oral contracts?
The majority, reversing the appellate court, reasoned that because the legislature had used the clause 'in the ordinary course of business' it intended a technical, accounting meaning to be applied to the term. Relying on an accounting dictionary from the year 2000, it concluded that the legislature intended the phrase to cover "amounts due [a business] on an account from customers who have bought merchandise or services." Thus, all oral contracts for services or merchandise are now subject to a 6 year statute!
The majority did not seemed troubled by the fact that this enormous change to long-standing Washington law governing oral contracts was adopted with nary a whimper as to that scope, but instead relied on what it deemed to be the "plain meaning" of the word from that technical dictionary.
The dissent, though, relied on a normal dictionary, Websters from 2002(!), which defined it as "a balance due from a debtor on a current account" and relied on "current account's definition" as "an account betwen two parties having a series of transactions not covered by evidences of indebtedness (as notes or certificates) and usu. subject to settlements at stated intervals (as monthly or quarterly)."
In other words, the dissent relied on plain meaning from a nontechnical dictionary to argue narrow scope for the exception, while the majority relied on a technical dictionary to give it expansive, and likely unintended meaning (you would think someone would have said, "my gosh, aren't we creating a 6 year window for all oral contracts by a business?" if this is what the legislature intended.)
Great case. The majority dispenses with the dissent's read of the legislative history, even though one senator read the bill as *not* creating a 6 year statute for all oral contracts, and thought the legislature ought to do that to avoid disputes over what an account receivable with a business was.
Remarkable. I think the majority blew it, but I'm always for the underdog.
February 18, 2007
Statute and Regs Requiring Adult Movie Producers to Keep Records Applies to More Mainstream Media, too. There's an interesting piece here about why even soap operas may be required to keep records in light of 2006 amendments.
Smokers' Claims No Longer Time-Barred. There's an article here about an interpretation of California's statute of limitations as applied to smokers' claims. I teach Remedies, and the decision seems to make sense, given the one action rule and the general prohibition against recovery of speculative damages.
House Democrats: Federal Reporters' Shield Law Needed. Read about the proposed legislation here.