California (10.27.04)

All quiet on the western front . . . . No new opinions expected from the Supreme Court of California this week.

California (10.21.04): No opinions are expected from the California Supreme Court today. Stay tuned Monday.

Florida (10.21.04)

Foreshadowing the coming showdown in the United States Supreme Court over the "Beef: It's What's for Dinner" campaign, a Florida appellate court struck down a tax on citrus growers as unconstitutional.

The growers in Department of Citrus v. Graves Brothers believe the tax—all of which goes to fund the Florida Department of Citrus’ promotional campaigns—violates their freedom of speech. The Florida Department of Citrus argues that most growers want to participate in the generic promotional campaigns and that the tax funds governmental speech that is exempt from First Amendment protections.

The Second District Court of Appeal's opinion relies in part on Livestock Marketing Ass'n v. United States Department of Agriculture, where the Eighth Circuit held that the "Beef: It's What's for Dinner" campaign is not governmental speech exempt from First Amendment protections. Rather, citrus growers are more like the mushroom growers in United States v. United Foods because the citrus market is not collectivized or protected from competition. The St. Petersburg Times has more on the case here.

The United States Supreme Court will grapple with these same issues on December 8 when the Livestock Marketing case is heard (as consolidated cases Veneman v. Livestock Marketing Association, No. 04-1164, and Nebraska Cattlemen v. Livestock Marketing, No. 04-1165). Goldstein & Howe, representing Livestock Marketing, have posted the respondent’s brief here. The ABA has posted petitioners’ briefs: The brief for Agriculture Secretary Ann Veneman is posted here and the brief for the Nebraska Cattlemen is posted here. Jenner & Block has a nice summary here.

Florida (10.19.04)

In AFL-CIO v. Glenda Hood (no. 04-1921) yesterday, the Supreme Court of Florida upheld a Florida law that says provisional ballots must be cast in a voter’s home precinct. The AFL-CIO contended that the precinct-specific provision was an unnecessary restriction on the right to vote, in violation of the Florida constitution. State officials argued that under the Florida constitution, the legislature is authorized to impose reasonable and necessary regulations on the “place” at which an elector may cast his or her vote. The court sided with the state, finding that requiring provisional ballots to be cast in a voter’s home precinct is not an “[u]nreasonable or unnecessary restraint[] on the elective process.”

The St. Petersburg Times has a report here, the Tallahassee Democrat reports here, and the Miami Herald reports here. The Los Angeles Times covered the decision here. The blawg Abstract Appeal has more on the case here.

California (10.18.2004)

In People v. Williams, S110377, the Supreme Court of California held that where a defendant is sentenced in two different cases under the three strikes law, the trial court can add enhancements for prior serious felony convictions to each sentence for a new serious felony conviction. The defendant in this case was sentenced on the same day for two separate crimes and the trial court added enhancements to both sentences, based on the defendant's two prior felony convictions. In affirming the sentence, the high court stated that adding enhancements in both cases is “not inconsistent” with the voter’s intent “to increase sentences for recidivist offenders.” “The Three Strikes law,” the court said, “does not draw any distinction between status enhancements, based on the defendant’s record, and enhancements based on the circumstances of the current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense.”

While we’re on the subject of California’s three strikes law, note that Proposition 66 on the November ballot attempts to limit second and third strikes to serious or violent felonies. SoCalLawBlog and Legal Reader have excellent discussions of the proposed changes here and here.

On Wednesday, the Supreme Court of California granted review to these cases:

Blair v. Superior Court, S126541: Are county procedures for selecting prospective jurors constitutional? A Hispanic defendant on trial for murder challenged the group of prospective jurors on the grounds that Hispanics are significantly underrepresented and systematically excluded from jury venires. A defense expert testified that Hispanics constitute 14.6% of the jury-eligible population and 8.8% of jury venires. The Court of Appeals found that jury venires, which are drawn from motor vehicle and voting records, do not systematically exclude Hispanics and that the disparity is not unconstitutional.

General Motors v. Franchise Tax Board, S127086: Did net proceeds from certain investment transactions constitute "gross receipts" for purposes of the California sales factor? O’Melveny & Myers has a nice summary of the Court of Appeal’s holding.

Grace v. eBay, S127338: Can internet businesses like eBay be held liable for defamatory web postings? The Recorder reported:

[This case] arose after Roger Grace, editor and co-publisher of Los Angeles' Metropolitan News-Enterprise, purchased vintage magazines on eBay and then criticized their delivery and condition. The seller responded with postings that called Grace "dishonest all the way!!!!" and demanding that he be banned from the Web site.

L.A.'s 2nd District Court of Appeal ruled in July that eBay had protected itself with a release provision in its user agreement that relieved the company of liability for comments by one user against another. But the court said that the California Decency Act of 1996 doesn't immunize eBay against liability for distributing information it knows or had reason to believe was false.

You can read the whole article here.

In re Marriage of Rosendale, S126908: Can a court decline to enforce a premarital waiver of spousal support if at the time of enforcement it would be unconscionable to do so? Eight years into marriage, a wife was in a life-threatening car accident that left her unable to earn a living, and her husband petitioned the court for dissolution of marriage and filed a motion to determine the validity and enforceability of their premarital agreement.

People v. Adams, S127373 and People v. Cage, S127344: In these two cases, the court will consider whether admission of testimonial hearsay by an unavailable declarant violated the confrontation clause in the wake of the United States Supreme Court’s opinion in Crawford v. Washington, 124 S. Ct. 1354 (2004).

People v. Pokovich, S127176: Can statements made by a criminal defendant to psychiatrists, who determined the defendant’s competency to stand trial, be admitted at trial to perjure the defendant’s testimony?

No opinions expected from the Supreme Court of California today. Opinions are normally filed Mondays and Thursdays at 10:00 a.m. and are posted on the court's website.

Florida court strikes down abortion law
In a 3-0 decision in State of Florida v. Presidential Women's Center, the 4th District Court of Appeal struck down a law requiring doctors to give patients seeking abortions information about abortion risks and alternatives. The "Women's Right to Know Act" was passed in 1997 but never enforced pending litigation. The court found that the law "imposes significant obstacles and burdens upon the pregnant woman which improperly intrude upon the exercise of her choice between abortion and childbirth." State officials are considering an appeal. CNN has more coverage here.

Florida court hears arguments on provisional ballots
The Supreme Court of Florida heard oral arguments yesterday in AFL-CIO v. Glenda Hood (no. 04-1921). The AFL-CIO is challenging a Florida law that says provisional ballots must be cast in a voter's home precinct. After the 2000 election, Florida passed a law permitting voters whose names are not on the precinct rolls to cast “provisional ballots.” However, Canvassing Boards cannot count, provisional ballots unless the voters’ residency within the precinct at which they appear to vote can be established. The AFL-CIO contends that the law would “disenfranchise voters who are given incorrect information or, through circumstances beyond their control, such as a hurricane, go to the polls and the polling place has moved.” The Secretary of State argues that allowing voters to cast provisional ballots in any precinct would lead to chaos. The Supreme Court is expected to rule before the November 2 election.

Briefs, transcripts of oral argument, and video are available on the court's website. The St. Petersburg Times has a report here, and Abstract Appeal has more history on the case here.

Activist Petitions California Supreme Court

The New York Times is reporting today that Democratic activist Scott Rafferty has petitioned the Supreme Court of California to stop requiring voters who fax their ballots to sign a waiver of secrecy. The Times explains:

Federal officials have been working to find alternative ways for voters overseas to receive and return their ballots, including the Internet and faxing. In recent weeks, political operatives have raced to begin their own efforts to help voters, including the posting of a federal write-in ballot on private Web sites. Voters are being asked to use this ballot if their regular ballot fails to arrive in time.

Faxing, which 23 states allow, is controversial because it requires voters to give up their privacy in casting a ballot. Some members of the military have said they are concerned about intimidation.

The case is Bridgeman v. Shelley.