Kansas House committee removes provision requiring state courts order funding as required by the U.S. Constitution

wraftery@ncsc.org (Bill Raftery) — Thu, 22 Mar 2012 13:12:39 GMT

Yesterday I noted with respect to a Minnesota bill that it was common for legislators to propose constitutional amendments to prohibit state courts from ordering funds to be expended. Late last week Kansas’ House Judiciary Committee advanced just such a bill, but with an interesting change. HCR 5006, a state constitutional amendment introduced in January [...]

HCR 5006, a state constitutional amendment introduced in January 2011 read

The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law or as may be required by the constitution of the United States.

It was amended in February 2012 to add a single phrase (in bold)

The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect an appropriation or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law or as may be required by the constitution of the United States.

The bill lay dormant for the year until March 16 when the House Judiciary Committee took up the bill again, this time removing a provision (strikeout).

The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect an appropriation or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law ~~or as may be required by the constitution of the United States~~.

The bill now advances to the House floor where it is on the calendar for March 26.

6th Circuit Largely Affirms District Court Ruling on Constitutionality of the Tobacco Act

Thu, 22 Mar 2012 08:12:34 GMT

By Ricardo Carvajal – A divided 6th Circuit panel affirmed a lower court’s ruling that some provisions of the Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”) are unconstitutional, but others are not. As we noted in a prior...

By Ricardo Carvajal –

A divided 6th Circuit panel affirmed a lower court’s ruling that some provisions of the Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”) are unconstitutional, but others are not. As we noted in a prior posting, a federal district court ruled in November 2009 that certain provisions of the Tobacco Act violated the First Amendment, namely (1) the mandate that cigarette and smokeless tobacco labeling and advertising use only black text on a white background, and (2) the prohibition on statements suggesting that a tobacco product is safe or less harmful because it is regulated or inspected by FDA, or is in compliance with FDA regulations. The 6th Circuit affirmed the first of these determinations, but reversed the second on the ground that the prohibition does not extend to non-commercial speech (e.g., speech by journalists, scientists, and politicians) and therefore should not have been analyzed under strict scrutiny. Rather, the prohibition extends only to commercial speech that the court deemed “inherently misleading and patently false,” and therefore not entitled to First Amendment protection.

In its November 2009 decision, the district court also ruled that certain provisions of the Tobacco Act did not violate the First Amendment, namely (1) the required warnings on cigarette and smokeless tobacco packages, including “color graphics depicting the negative health consequences of smoking,” (2) the restrictions on distribution of samples, continuity programs, and promotion of brands through event sponsorship and merchandise, , and (3) the prohibition on labeling or advertising claims suggesting reduced risk in the absence of FDA approval as a modified risk tobacco product. The 6th Circuit affirmed all of these determinations, with one exception: the restriction on continuity programs (i.e., “the distribution of free gifts in consideration for a tobacco purchase”) was deemed overbroad.

The three-judge panel split on the question of the constitutionality of the color graphics requirement. Applying Zauderer’s rational basis standard, the majority concluded that the requirement is constitutional “[b]ecause graphics can present factual information regarding the health risks of using tobacco, and because this information alleviates the possibility of consumer confusion.” The dissent demurred, citing the recent D.C. district court decision finding that the graphic images selected by FDA for inclusion in its final rule are “neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking” (see our prior posting on that decision here). However, as noted by the majority, the selection of those images took place after the district court’s grant of summary judgment in the instant case.

There are numerous other points of difference between the majority and concurring/dissenting opinions rendered by the panel. Those differences, together with differences between the 6th Circuit and D.C. district’s First Amendment analyses, suggest that the Supreme Court will have the opportunity to opine on the constitutionality of the Tobacco Act before too long. We note that the D.C. district court decision has been appealed to the D.C. Circuit, which is scheduled to hold oral argument on April 10th.

Wisconsin Appellate Court finds Local Billboard Regulation does not Preempt County from Regulating Billboards

psalk@albanylaw.edu (Patricia E. Salkin) — Thu, 22 Mar 2012 05:15:27 GMT

The Adams Outdoor Advertising company sought to construct a billboard in the Town of Madison. Adams obtained permits from the Town and the Wisconsin Department of Transportation, but did not from the County of Dane. Adams brought this action, seeking declaratory judgment ascertaining whether or not Adams had to also file an application with the [...]

The circuit court found that since the Town enacted a billboard ordinance pursuant to state law, the County billboard standards enacted under the County’s general zoning authority were preempted. In making this ruling, the circuit court reasoned that, in creating a statute specifically addressing outdoor sign regulation, the state legislature intended for ordinances enacted pursuant to this statute to take priority over similar regulations enacted under the general zoning authority. The County argued that this was false, that they enjoyed the authority to regulate zoning, and that since the county’s authority is plenary, it is not preempted.

In reviewing the matter, the appellate court assigned two questions of law: whether county’s have the general zoning authority to regulate billboards; and, whether a town ordinance enacted pursuant to the State billboard law preempts a county’s billboard law enacted pursuant to their general zoning authority. In determining whether the County had the requisite general zoning authority, the court provided that state law authorizes counties to regulate “structures.” Since the state law did not define structures, the court looked to a recognized dictionary and found billboards fit within the definition. Thus, the county had the general zoning authority to regulate billboards.

The court then moved to the second issue, whether the county regulation was preempted by local law. State law provides that county zoning regulations, once approved by the county board, are not effective in towns, unless the respective towns approve the county regulations. In this case, the Town of Madison did approve the billboard regulations imposed by the County; thus, they are effective within the Town. In looking to the statutory language granting general zoning authority, there is no mention of the preemptive effect of Town regulations concerning billboards. The billboard specific statute, under which the Town enacted their regulation, does contain preemptive language; however, the preemptive effect only applies to County regulations enacted under the same – specific – section of the statute. Since the County regulation was based in general, and not specific, authority, the preemptive language was ineffectual. As a result, the Court of Appeals reversed the circuit court’s determination.

Adams Outdoor Advertising v. County of Dane, 2012 WL 375232 (Ct. App. Wisc., 2/2/ 2012)

The opinion can be accessed at: http://statecasefiles.justia.com/documents/wisconsin/court-of-appeals/2010ap000178.pdf?ts=1328191665

Filed under: Current Caselaw, Preemption, Signs

You Had Us At “Biosimilars,” FDA; Agency Ties Up Yet Another Biosimilars Loose End With Petition Response Concerning Certain “Biological Drugs”

Thu, 22 Mar 2012 00:40:25 GMT

By Kurt R. Karst – FDA’s issuance of three long-awaited and highly anticipated draft biosimilar guidances earlier this year (see our previous post here) seems to have hardly whet industry’s appetite for information on the Agency’s interpretation of Section 351(k)...

By Kurt R. Karst –

FDA’s issuance of three long-awaited and highly anticipated draft biosimilar guidances earlier this year (see our previous post here) seems to have hardly whet industry’s appetite for information on the Agency’s interpretation of Section 351(k) of the Biologics Price Competition and Innovation Act of 2009 (“BPCIA”). (A follow-up presentation from FDA on the draft guidances is available here and here. Another draft guidace on “Submission of Clinical Pharmacology Data as Evidence of Biosimilarity for Biologics and Protein Products” is on FDA’s guidance agenda for later this year.) Like Renée Zellweger’s character in the movie “Jerry Maguire,” who at a key scene in the film utters the line “You had me at hello” after listening to a long speech from the sports agent character played by Tom Cruise beginning with the word “hello,” industry’s attention seems to be immediately captured by FDA’s mere mention of the word “biosimilars.” (Indeed, it seems to create a feeding frenzy of sorts.) So we thought we would throw out another “hello” from FDA.

As we previously reported, shortly after FDA released the three draft biosimilars guidances, the Agency denied outstanding requests in two citizen petitions submitted to the Agency in April 2003 (Docket No. FDA-2003-P-0003) and April 2004 (Docket No. FDA-2004-P-0214) by the Biotechnology Industry Organization and Genentech, Inc. concerning the submission and approval of 505(b)(2) applications under the FDC Act for “biotechnology-derived products” or “follow-on therapeutic proteins.” Apparently there was a third pre-BPCIA citizen petition submitted to FDA in January 2009 (Docket No. FDA-2009-P-0004). The two-page citizen petition submitted by Therapeutic Proteins, Inc. simply requests that FDA “allow acceptance of applications for marketing authorization of equivalent forms of biological drugs” (i.e., certain protein and peptide products); or, as FDA’s rephrases the “ask”: “that FDA accept an ANDA submitted under section 505(j) of the FD&C Act for a protein or peptide product intended to be the ‘same’ as a product that previously was approved under either the FD&C Act or the PHS Act.” FDA’s six-page response granting in part and denying in part the petition appears to provide further insight into FDA’s thinking on biosimilars approval.

As FDA notes in the Agency’s petition response, “the availability of an abbreviated approval pathway for a protein or peptide product that seeks to rely, to some extent, upon a previously approved product is governed by the statutory authority under which the previous product was approved or licensed as well as by scientific considerations.” The ANDA pathway, says FDA, may be used to approve protein and peptide products only where the Reference Listed Drug was approved under FDC Act § 505(c), “the state of the science is adequate to demonstrate that the active ingredient is the same as the active ingredient of the RLD, and other statutory requirements are met.” Continuing on, FDA says that with current science highly complex proteins may not be suitable for the ANDA approval pathway:

Because of the complexity of protein molecules and limitations of current analytical methods, it would be difficult for manufacturers of proposed protein products to demonstrate that the active ingredient in their proposed product is identical to the active ingredient in an already approved product. Therefore, the 505(j) approval pathway, which is predicated on a finding of the “same” active ingredient, will not ordinarily be available for more structurally complex molecules. [(Italics in original)]

Because of the difficulties associated with demonstrating sameness of complex products necessary for ANDA approval, the 505(b)(2) application pathway, which has a “sufficiently similar” standard, may be the better bet, according to FDA. “The 505(b)(2) approval pathway may be used for a protein or peptide product that is demonstrated to be sufficiently similar to an approved product to permit scientifically justified reliance on certain existing information (e.g., FDA’s finding of safety and/or effectiveness for an approved drug product) to support approval” (italics in original).

FDA’s petition response (like the Agency’s draft guidances) raises a host of unanswered questions. For example, what series of tests – a la enoxaparin might or might not suffice to demonstrate “sameness” for ANDA purposes for a particular complex protein product during the transition period described in § 7002(e) of the BPCIA (ending on March 23, 2020), and how will FDA handle such products once the transition period ends? Such questions will likely be addressed in time and on a product-specific basis as sponsors seek FDA’s advice and guidance.

New Hampshire House effort to create 7-year terms for judges taken off the table, may have vote this afternoon Update: Effort fails 172-176 on procedural vote

wraftery@ncsc.org (Bill Raftery) — Wed, 21 Mar 2012 16:36:30 GMT

Judges in New Hampshire’s state courts, after their appointment by the governor and confirmation by the state’s executive council, serve until age 70, must to the angst of several members of the legislature. CACR 11, introduced initially in 2011, would replace this with 5-year terms subject to reappointment and reconfirmation. The bill initially failed in [...]

The bill initially failed in November 2011 when the House Judiciary Committee recommended its rejection on a 10-6 vote. It was then recommitted to the Judiciary Committee by the full House and then swiftly moved to another committee (the House Constitutional Review and Statutory Recodification Committee) which had previously approved several anti-judiciary bills. That committee expanded the term to 7 years and provided that the new rule would only apply to judges appointed after 1/1/2012. The revised version was recommended for passage on a 10-5 vote. The House then voted on March 7, giving it a majority (218-120) but not the 3/5ths of the full membership (240 out of 400) needed for passage under the state’s constitution. The bill was tabled 244-97.

This morning votes were expected on two pieces of legislation that would curtail or end the state supreme court’s rule making authority. Instead, a motion was made to take CACR 11 off the table, which was approved 209-144.

The bill was then debated, including several references to possible Senate action on an unspecified House bill that is currently in the Senate for a hearing soon. The Senate Judiciary Committee is set to take up three House bills tomorrow March 21: HB 344 relative to judicial performance evaluations, HB 1384 relative to the statute of limitations for complaints against judges, and HB 151 repealing the laws relative to marital masters.

The House voted 156-200 to reject a motion that the bill was “Inexpedient to Legislate” and then went into lunch until 1:10 PM Eastern.

Live coverage of this afternoon’s House activity is available here.

Update 3/21/12 @ 1:27 P.M. The House rejected a motion to reconsider the actions taken on March 7 by a 172-176 vote. The Speaker has stated from the chair that there is no further legislative activity to be had on this matter.

San Antonio Bar Association Appellate Section

kendallgray@andrewskurth.com (Kendall Gray) — Wed, 21 Mar 2012 16:14:05 GMT

This post is a bit over due, but I promised the gathered throng at the San Antonio Bar Association to upload my PowerPoint presentation.

So here you will find "Don't Be Ugly" about how to make your brief more persuasive through good typography and document design.

Of course, the most important thing is not the presentation itself, but the resources behind the presentation. Those resources are:

"Typography For Lawyers"by Matthew Butterick
"Painting With Print" by Ruth Anne Robbins
And the Seventh Circuit's "Requirements And Suggestions For Typography In Briefs And Other Papers" (catchy title, that)

Enjoy.

Minnesota bill would cut judicial funding for every dollar court orders state to pay

wraftery@ncsc.org (Bill Raftery) — Wed, 21 Mar 2012 15:35:17 GMT

Bills that would prohibit courts from ordering or directing the expenditure of state funds are nothing new. When courts have ordered increased funding, for schools for example, there has been anecdotal evidence that court budgets have been reduced in retaliation. Minnesota’s SB 2454, however, adds a new twist: direct and explicit fiscal retaliation against the [...]

The bill contains two provisions. The first is the general prohibition on the court ordering of expenditures.

A court may not: (1) order the governor, an executive branch agency, or the legislature to spend money or to otherwise incur a financial obligation; or (2) appropriate money unless pursuant to an enacted law.

The unique element is in the second clause.

Reduction in court budget; determination by commissioner of management and budget. If the commissioner of management and budget determines that money has been paid out of the state treasury as a result of a court order directing that money be spent to continue the operation of a state function in the absence of an appropriation, the commissioner shall reduce the current general fund operating budget appropriation to the court by the amount determined. If no operating budget for the court has been enacted, the commissioner shall make the specified reduction in the next enacted court budget.

The bill seems to stem from instances in 2011 and 2005. There, the state failed to pass a budget by the constitutional deadline, leading to partial government shutdowns. The courts were requested to step in and order at least some “essential services” be maintained. In 2011 this prompted several bills that would have defined “essential services” and curtailed the judiciary’s power to order some funding.

SB 2454 is currently pending in the Senate Judiciary and Public Safety Committee.

Indiana Appellate Court Finds Restrictive Covenant in Planned Unit Development does not Amount to a Zoning Ordinance

psalk@albanylaw.edu (Patricia E. Salkin) — Wed, 21 Mar 2012 05:11:32 GMT

Heide and Wilkerson own residences in the Benjamin Crossing planned unit development and sought to operate child care homes in their respective residences. The applicable restrictive covenants and local law did not permit such a use in their residences, and thus the landowners filed a complaint seeking damages and declaratory judgment providing that the Homeowners’ Association and the Tippecanoe Area Building Commission could not enforce the restrictive covenants and local law. The Association filed a counter-claim, seeking an injunction to prohibit the operation of child care homes in the residences, and filed for summary judgment. The trial court issued summary judgment in favor of the landowners. The Association appealed, and the Court of Appeals of Indiana reversed and remanded.

Upon the creation of the planned unit development, a Declaration of Covenants was executed, which included a prohibition of home businesses that encompassed child care homes. This Declaration was passed via final resolution by the Tippecanoe Area Plan Commission, and thus became local law. The trial court first found for the Association, but upon second review, found that the planned unit development’s restrictive covenants amounted to a zoning ordinance, as they had been incorporated into the planned unit development ordinance, “and a zoning ordinance may not exclude the operation of a licensed child care home in the operator’s residence.” The trial court granted summary judgment in the landowners’ favor. The Association appealed the determination that the restrictive covenants amounted to zoning ordinances.

In reviewing state law, the appellate court found there was no question that the local government had no authority to prohibit the use of the residences as child care homes, as the legislature had divested local governments of the authority to prohibit such uses by “zoning ordinances.” The Court of Appeals of Indiana could not agree with the trial court that the restrictive covenants were more than a “private contract” and part of a “zoning order,” and thus, found the state law did not apply. As a result, the restrictive covenants’ enforcement could not be prohibited by state law.

The appellate court found the private agreements between property owners embodied in the restrictive covenants were not vitiated by the adoption of the planned unit development ordinance. These restrictive covenants are enforceable between private parties, and thus do not amount to zoning ordinances enforced by municipal officials. As such, the court found the trial court erred in finding the enforcement of the restrictive covenant was prohibited, and erred in granting summary judgment in favor of the landowners. The appellate court reversed and remanded, directing the trial court to grant summary judgment and an injunction in favor of the Association, forbidding the operation of the child care homes within the planned unit development of Benjamin Crossing.

Benjamin Crossing Homeowners’ Ass’n v. Heide, 961 N.E.2d 35 (Ct. App. Ind., 2012)

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/02071201ewn.pdf

Filed under: Current Caselaw, Home Occupations, Restrictive Covenants

Arizona Appellate Court Finds Lower Court Lacked Jurisdiction to Hear Appeal on Nonconforming Status of Mobile Homes For Failure to Follow State Administrative Procedure

psalk@albanylaw.edu (Patricia E. Salkin) — Wed, 21 Mar 2012 02:08:08 GMT

In 1998, new zoning regulations became effective implementing minimum space requirements for mobile home lots; however, these regulations were not immediately enforced. From 2003-2010, Stagecoach sought and received permits for thirty-four mobile homes that did not meet the space requirements. In December, 2009, the City informed the mobile home park owners that no new applications would be approved that did not conform to the minimum space requirements. The City also informed the mobile home park owners that the regulations would not apply to units that had already been installed.

In 2010, Stagecoach applied for a permit to install a new mobile home on a lot which had become vacant. The application was denied by the zoning administrator as it did not comply with the minimum space requirements. Stagecoach argued it did not have to comply with the requirements because it qualified as a non-conforming use, but was denied on appeal by the City board of adjustment. Stagecoach filed suit in state court alleging the subject ordinance was void because the City did not follow the necessary procedural requirements in its enactment. Stagecoach also sought declaratory judgment providing the ordinance did not apply to existing mobile home parks. Upon review, the superior court found the ordinance failed to meet procedural requirements imposed by state law and was therefore void. Thereafter, upon a supplemental special action complaint, the superior court also found that the City was obligated to issue the permit, as Stagecoach “has a ‘due process right to continue a nonconforming use.’” They City appealed, claiming the superior court did not have jurisdiction over the supplemental complaints, as the issues were not considered before the City board of adjustment.

The supplemental special action complaints concerned the zoning administrator’s subsequent denials of Stagecoach’s applications. These later denials were premised upon the zoning regulations in effect prior to the enactment of the void ordinance. These denials were not heard by the board of adjustment; the board of adjustment made their previous – and only – determination on the zoning administrator’s first denial premised upon the void ordinance. Arizona law permits the superior court to hear zoning appeals, but only following a determination of the board of adjustment. Since the board of adjustment rendered determinations considering the void ordinance, and made no subsequent determination as to the previous regulations, there was no basis for appellate jurisdiction – the claim was essentially not ripe for review. Since the superior court lacked jurisdiction to hold the subsequent hearings, the mandamus relief granted therein was in error and reversed.

Stagecoach Trails MHC v. City of Benson, 2012 WL 605712 (Ct. Ap. Ariz., Div. 2, Dep’t B, 2/27/2012)

The opinion can be accessed at:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20AZCO%2020120227000.xml&docbase=CSLWAR3-2007-CURR.

Filed under: Current Caselaw, Mobile Homes, Non-Conforming Uses

Iowa Fence Law Legislative Update

bclark@sullivan-ward.com (Benjamin Clark) — Tue, 20 Mar 2012 21:26:49 GMT

As an update to previous entries regarding Iowa's fence law, the 2011 proposed legislative changes (Senate File 2102) failed to make it out of subcommittee. We will have to wait another year to see whether the legislature decides to modify the century-old statute, in particular limiting its application to agricultural uses. Until then, the statute will continue to operate in a gray area.

Tennessee House Judiciary Committee approves 9-6 plan to put merit selection explicitly in state’s constitution

wraftery@ncsc.org (Bill Raftery) — Tue, 20 Mar 2012 17:17:23 GMT

There has been copious amounts written on this blog and in the Gavel to Gavel publication on Tennessee’s merit selection system (here’s an overview). The latest effort, HJR 753, would specifically place a merit-selection system in the state’s constitution for appellate judges in the state. Specifically the proposed constitutional amendment would replace the existing Article [...]

There has been copious amounts written on this blog and in the Gavel to Gavel publication on Tennessee’s merit selection system (here’s an overview). The latest effort, HJR 753, would specifically place a merit-selection system in the state’s constitution for appellate judges in the state. Specifically the proposed constitutional amendment would replace the existing Article VI, Section 3…

The judges of the Supreme Court shall be elected by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years.

…with this…

Each judge of the Supreme Court or any intermediate appellate court shall be initially selected via merit-based gubernatorial appointment from a panel of qualified candidates submitted by a nominating commission; shall be legislatively confirmed; and, thereafter, contingent upon a satisfactory job performance evaluation, shall be subject to retention election by the qualified voters of the state. The Legislature shall prescribe such rules as may be necessary to implement sections two and three of this article. Each such judge shall be at least thirty-five years of age and shall have been a resident of the state for the five-year period immediately preceding appointment. The term of service shall be eight years.

The plan has the support of the state’s governor and legislative leaders. Despite this, the bill passed by only a 9-6 vote earlier today on its way to the House Finance, Ways & Means Committee.

The video below is from the (short) Judiciary subcommittee hearing on the bill on March 14 and the (longer) hearing and vote from March 20.

Creating court security fees in Minnesota

wraftery@ncsc.org (Bill Raftery) — Tue, 20 Mar 2012 14:22:25 GMT

The recent spate of courthouse shootings and attacks has brought the focus back to court security and specifically how to pay for it. Several states provide for court security fees to be added to civil and/or criminal cases. Minnesota is considering such a plan, one that would allow counties that feel the need for such [...]

The recent spate of courthouse shootings and attacks has brought the focus back to court security and specifically how to pay for it.

Several states provide for court security fees to be added to civil and/or criminal cases. Minnesota is considering such a plan, one that would allow counties that feel the need for such a fee to impose it up to $15.

This video is from the March 15, 2012 hearing on the bill (HF 2000) before the Minnesota House Judiciary Policy and Finance Committee.

Bans on court use of sharia/international law: Bills withdrawn in Minnesota and New Jersey, Kansas House attaches ban to unrelated bill

wraftery@ncsc.org (Bill Raftery) — Tue, 20 Mar 2012 13:40:53 GMT

The last several weeks in the examination bans on court use of sharia/international law have seen something new: while such bans have been voted down in committee before for t he first time authors are starting to withdraw the bills outright. Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV: [...]

Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV:

Before the bill was even introduced, the author, Republican Dave Thompson pulled it. “It was never my intent to introduce legislation that was being targeted to any one group,” said Thompson.

The second bill was New Jersey’s AB 919 (introduced in the 2010/2011 session as AB 3496). Introduced January 10 of this year, the bill was withdrawn last week. The NJ Assembly Republicans blog on March 13 quotes the bill’s author (GOP Assemblywoman Holly Schepisi):

In the climate of what has been transpiring in the Muslim community in New Jersey, they were concerned it would further, in their view, portray Muslims in a negative light. After sitting and listening to their concerns, I agreed to withdraw it.

The legislature’s website, however, does not yet show the bill has having been formally withdrawn. (No direct link to bill status page, follow this link and search for bill AB 919).

The other activity as in Kansas. SB 79, as originally introduced, had nothing to do with international law or sharia and dealt with the state’s program on allowing courts to recover fees/fines owed. That bill passed the Senate unanimously.

Yesterday (March 19) the House changed the bill entirely. The House substitute for SB 79 simply replicates the language of HB 2087, which the House had previously passed and the Senate had declined to advance.

Readers may recognize this tactic on the part of the Kansas House. When the House approved bills to end merit selection for the state’s Court of Appeals, bills the Senate did not take up, the House started to add provisions to unrelated bills (see here, here, and here). The difference here is that rather than tacking on the new provision to the existing bill, this effort simply replaces the text of the bill entirely.

Full roster of 41 bills introduced and their statuses after the jump.

Bill	Provisions	Status
Alabama SB 33 (Constitutional Amendment)	Enacts American and Alabama Laws for Alabama Courts Amendment. Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”	In Senate Committee on Judiciary.
Alabama SB 40 (Constitutional Amendment)	Defines foreign law as “any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.” Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”	In Senate Judiciary Committee.
Alabama SB 84 (Constitutional Amendment)	Defines foreign law as “any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.” Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”	Approved by Senate Committee on Judiciary 3/1/12.
Alaska HB 88	Prohibits a court, arbitrator, mediator, administrative agency, or enforcement authority from applying a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution.	Approved by House State Affairs Committee 3/17/11. Approved by House Judiciary Committee 4/4/11. Carried over from 2011 session.
Florida HB 1209	Provides “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Provides the term does not include the common law and statute laws of England as described or any laws of the Native American tribes in the state. Declares “Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.”	Approved by House Judiciary Committee 2/22/12. Approved by full House 3/1/12. Died in Senate Judiciary Committee when legislature adjourned.
Florida SB 1360	Provides “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Provides the term does not include the common law and statute laws of England as described or any laws of the Native American tribes in the state. Declares “Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.”	Approved by Senate Budget Subcommittee on Criminal and Civil Justice Appropriations 2/28/12. Died on Senate floor when legislature adjourned.
Georgia HB 45	Provides “the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.”	In House Committee on Judiciary. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day.
Georgia HB 242	Declares “‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.”	Approved by House Committee on Judiciary Non-Civil 2/24/12. Probably dead; failed to advance to Senate before crossover day
Georgia SB 51	Provides that no court, arbitrator, administrative agency, or other tribunal shall enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States	In Senate Committee on the Judiciary. Carried over from 2011 session. Probably dead; failed to advance to House before crossover day.
Georgia SR 926 (Constitutional Amendment)	Describes foreign and religious laws which are incompatible with the laws and policy of the United States and the State of Georgia. Provides ways in which incompatible laws may not be applied or enforced by courts of state.	In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day.
Indiana HB 1166	Provides that a court may not apply, enforce, or grant comity, res judicata, claim preclusion, or issue preclusion to a foreign law, ruling, or judgment if doing so would violate the fundamental liberties, rights, and privileges guaranteed by the United States Constitution or the Constitution of the State of Indiana. Provides that a provision in a contract or agreement: (1) that provides for the choice of foreign laws in its interpretation; or (2) that provides for the choice of venue or forum; and that would result in a violation of a fundamental liberty, right, or privilege guaranteed by the United States Constitution or the Constitution of the State of Indiana is void and unenforceable. Prohibits a court from granting certain motions if the transfer is likely to affect the constitutional rights of the nonmoving party. Provides that a court may not require or authorize any court to: (1) adjudicate or prohibit a religious organization from adjudicating ecclesiastical matters; or (2) determine or interpret the doctrine of a religious organization.	In House Committee on Judiciary. Probably dead; failed to advance to Senate before crossover day.
Indiana SB 36	Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution. Provides that a provision in a contract or agreement calling for the application of foreign law is not enforceable and is void if the provision cannot be modified, unless the contract explicitly states that it will be enforced in accordance with foreign law. Prohibits a court from granting certain motions to transfer a case to another jurisdiction if the transfer is likely to affect the constitutional rights of the nonmoving party.	In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day.
Indiana SB 90	Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution. Provides that a provision in a contract or agreement between natural persons calling for the application of foreign law is not enforceable and is void if the provision cannot be modified. Prohibits a court from granting certain motions to transfer a case to another jurisdiction if the transfer is likely to affect the constitutional rights of the nonmoving party.	In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day.
Iowa HB 489	Defines “foreign law, legal code, or system” as “any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including but not limited to international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.” Provides “It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code, or system against a person in this state is whether the decision rendered violated any right of the person in this state guaranteed by the Constitution of the State of Iowa, the Constitution of the United States, or any statute enacted or decision issued under the constitution of the state of Iowa or the United States.”	In House Judiciary Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day.
Iowa HB 575	Enacts “Iowa Freedom and Sovereignty Act.” Defines “Foreign law” as “any law enacted by a jurisdiction or a governmental or quasi-governmental body other than the federal government or a state of the United States. “Foreign law” includes a religious law, legal code, accord, or ruling promulgated or made by an international organization, tribunal, or formal or informal administrative body.” Provides “any foreign law or other law that is in conflict with the principles of the Declaration of Independence, the Constitution of the United States, or the Constitution of the State of Iowa shall not have force or effect in this state…It is the public policy of this state that the only factor that a court, administrative agency, arbitrator, mediator, or other person acting under authority of this state’s laws shall consider in granting comity to a decision rendered under a foreign law that affects a sovereign citizen of this state is whether the decision violates the sovereign citizen’s rights under the Constitution of the United States or the Constitution of the State of Iowa.”	In House State Government Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day.
Iowa HJR 14 (Constitutional Amendment)	Provides the state courts “when exercising judicial power, shall uphold and adhere to the law as provided in the Constitution of the United States, the Constitution of the State of Iowa, the United States Code, federal regulations, established common law, the Iowa Code, the Iowa administrative code, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not use the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law. The provisions of this section shall apply to all cases before the respective courts including but not limited to cases of first impression.”	In House Judiciary Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day.
Iowa SB 2198	Enacts “Iowa Freedom and Sovereignty Act.” Defines “Foreign law” as “any law enacted by a jurisdiction or a governmental or quasi-governmental body other than the federal government or a state of the United States. “Foreign law” includes a religious law, legal code, accord, or ruling promulgated or made by an international organization, tribunal, or formal or informal administrative body.” Provides “any foreign law or other law that is in conflict with the principles of the Declaration of Independence, the Constitution of the United States, or the Constitution of the State of Iowa shall not have force or effect in this state…It is the public policy of this state that the only factor that a court, administrative agency, arbitrator, mediator, or other person acting under authority of this state’s laws shall consider in granting comity to a decision rendered under a foreign law that affects a sovereign citizen of this state is whether the decision violates the sovereign citizen’s rights under the Constitution of the United States or the Constitution of the State of Iowa.”	In Senate State Government Committee. Probably dead; failed to advance to House before crossover day.
Kansas HB 2087	Defines “foreign law,” “legal code” or “system” means any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals and applied by that jurisdiction’s courts, administrative bodies or other formal or informal tribunals. Provides “Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions.”	Approved by full House 3/30/11. In Senate Committee on Judiciary. Carried over from 2011 session.
Kentucky HB 386	Establishes legislative intent that the rights of an individual afforded under the Constitutions of the Commonwealth and the United States take precedence over the application of any foreign law in any judicial or quasi-judicial proceeding. Strictly construe waivers of constitutional rights Provides exceptions for corporate entities Prohibits choice of venue outside of the Commonwealth or United States to preserve the constitutional rights of the person against whom enforcement is sought.	In House (no committee).
Michigan HB 4769	Defines “foreign law,” as “any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.” Provides “A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.”	In House Committee on Judiciary.
Michigan SB 701	Defines “foreign law,” as “any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.” Provides “A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.”	In Senate Committee on Government Operations.
Minnesota SB 2281	Provides “A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on a law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the Minnesota Constitution and the United States Constitution, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the Minnesota Constitution.”	Withdrawn by author 3/5/12.
Mississippi HB 2	Provides “”Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.”	In House Judiciary A Committee. Probably dead; failed to advance out of committee before deadline.
Mississippi HB 698	Prohibit use of international or Sharia law by state’s judiciary.	In House Judiciary A Committee. Probably dead; failed to advance out of committee before deadline.
Missouri HB 1512	Provides court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Missouri constitutions, including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.	Approved by House Rules Committee 3/8/12.
Missouri SB 676	Mandates that any court, arbitration, tribunal, or administrative agency ruling shall be unenforceable if based on a foreign law that does not grant the parties the same rights as the parties have under the United States and Missouri constitutions.	Approved by Senate General Laws Committee 2/28/12.
Nebraska LB 647	Declares a court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska.	In Senate Judiciary Committee. Carried over from 2011 session.
New Hampshire HB 1422	Declares that no New Hampshire court shall enforce foreign law or a state law enforcing foreign law if such enforcement violates an individual’s or corporation’s rights under the New Hampshire constitution or the United States Constitution.	Approved as amended by full House 2/22/12.
New Jersey AB 919	Provides that a foreign law may only be recognized by a court in New Jersey if it does not violate any right guaranteed by the Constitution of this State or of the United States of America.	Author has announced she will withdraw bill 3/13/12.
New Mexico SJR 14 (Constitutional Amendment)	Provides “The courts provided for in this article, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States constitution, the constitution of New Mexico, statutes of the United States and federal regulations adopted pursuant thereto, established common law, New Mexico statutes and state regulations adopted pursuant thereto and, if necessary, the law of another state of the United States, provided that the law of the other state does not include Sharia law. The courts shall not consider or apply a rule of comity to the legal precepts of other nations or cultures, international law, laws promulgated by foreign governments or national laws of foreign countries if the consideration or application of the foreign precepts or laws would violate the public policy of the state of New Mexico or reduce or impair the rights of any resident of the state of New Mexico existing under New Mexico statutes or common law governing child custody, rights of married persons, property rights, protection from domestic violence or any criminal law. The courts shall not consider or apply Sharia law. The provisions of this section shall apply to all cases before the respective courts, including, but not limited to, cases of first impression.”	In Senate Rules Committee. Died when legislature adjourned.
North Carolina HB 640	Declares “it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a right of a natural person guaranteed by the North Carolina Constitution or the United States Constitution. The public policies expressed in this section shall apply only to actual or foreseeable violations of a constitutional right resulting from the application of the foreign law.”	In House Committee on Judiciary Subcommittee C. Carried over from 2011 session.
Oklahoma HB 1552	Provides any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, rule, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Oklahoma Constitutions.	Approved by full House 3/17/11. In Senate Rules Committee. Carried over from 2011 session.
Pennsylvania HB 2029	Provides a tribunal shall not consider a foreign legal code or system which does not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States Constitution and the Constitution of Pennsylvania.	In House Judiciary Committee. Carried over from 2011 session.
South Carolina HB 3490	Provides “As used in this section, the term “foreign law” means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.”	In House Judiciary Committee. Carried over from 2011 session.
South Carolina SB 444	Provides “As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.”	In Senate Judiciary Committee. Carried over from 2011 session.
South Dakota HB 1253	ORIGINAL: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.” AS AMENDED: “No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.”	Signed into law by Governor 3/12/12.
South Dakota SB 136	ORIGINAL: Provides any ruling or decision that makes use of international or foreign law is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the constitutions of the United States and South Dakota, including due process of law, freedom of religion, speech, or press, and any right of privacy or marriage as specifically provided by the constitution of this state. Foreign law, legal code, or system is any foreign law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Specifies the term foreign law does not include any tribal laws of the Native American tribes in the state. AS AMENDED: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.”	Deferred to 41st day (i.e. killed) by Senate Judiciary Committee 2/2/12.
Virginia HB 631	Provides that court decisions and contracts and other agreements will be void as violative of the public policy of the Commonwealth where such decisions or contracts are based on foreign law, i.e., law applied in a jurisdiction outside of the United States, where the application of such foreign law would violate a person’s rights guaranteed by the United States Constitution or the Constitution of Virginia.	Continued to 2013 by House Committee for Courts of Justice 2/10/12.
Virginia HB 825	Prohibits any Virginia court or administrative agency from applying the law of any jurisdiction outside of the United States and its territories unless the application is required by the United States Constitution, the Constitution of Virginia, or any federal or state law.	Approved by House Committee for Courts of Justice 2/3/12. Continued to 2013 by House Committee for Courts of Justice 2/10/12.
West Virginia HB 3220	Provides “”foreign law, legal code or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals…It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code or system against a natural person in this state is whether the decision rendered either violated or would violate any right of the natural person in this state guaranteed by the Constitution of the State of West Virginia or the United States Constitution or any statute or decision under those Constitutions.”	In House Judiciary Committee. Carried over from 2011 session. Died when legislature adjourned.

Nerdiana Squared

kendallgray@andrewskurth.com (Kendall Gray) — Tue, 20 Mar 2012 10:17:31 GMT

The only thing better than typographic humor is typographic pun humor.

From the nice folks at BuzzFeed.

NTP Director Turns Spotlight on Endocrine Disruptors

Tue, 20 Mar 2012 06:45:20 GMT

By Ricardo Carvajal –

Linda Birnbaum, Director of the National Institute of Environmental Health Sciences and the National Toxicology Program, published an editorial discussing the most recent evidence that certain environmental chemicals, including suspected endocrine disruptors such as BPA, “can have effects that would not necessarily be predicted from their effects at high doses” – referred to as the “low dose hypothesis.” As the editorial puts it, “the question is no longer whether nonmonotonic dose responses are ‘real’ and occur frequently enough to be a concern; clearly these are common phenomena with well-understood mechanisms.” The upshot is that “chemicals with hormonal activity can have effects at external doses that are often considered safe by the regulatory community.”

With regard to BPA specifically, FDA is expected to announce later this month whether the agency will act to amend or rescind BPA’s approved food additive uses – a move compelled in part by a lawsuit filed by the Natural Resources Defense Council. It will be interesting to see whether evidence of nonmonotonic dose responses plays any part in FDA’s decision.

REMINDER: HP&M is hosting FDA Appeals - Improving Your Odds of Success: Trends, Expectations, Strategies, a webinar on March 21, 2012, 12:30 - 2:00 p.m. ET. Click here to register.

Court Reverses Denial of Special Permit

Tue, 20 Mar 2012 04:33:25 GMT

While upholding the denial of some area variances and a special permit, finding the evidence in the record supported that determination, the Appellate Division also reversed the denial of a special permit for a refuse enclosure, as well as a variance for placement of a sign. In Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, the Court noted:

"'Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right'.... Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance. The owner is required only to show compliance with legislatively imposed conditions pertaining to the intended use.... 'Failure to comply with any condition upon a special exception, however, is sufficient ground for denial of the exception'."(citations omitted)

Here the Court found that the denial of the special permit was not supported by the record and the matter was remanded for the zoning board to grant the special permit with appropriate conditions.

-Steven M. Silverberg

Alabama bill would ban legislators from appointments to judgeships for two years

wraftery@ncsc.org (Bill Raftery) — Mon, 19 Mar 2012 15:52:30 GMT

From a separation of powers standpoint, many state constitutions provide that an individual serving in one branch of government cannot simultaneously serve in another. In some states this is taken to the even further extreme of resign-to-run provisions, requiring an individual quit their current position before running for another. Alabama’s HB 550, however, may have [...]

Alabama’s HB 550, however, may have taken this to a new realm. The bill prohibits members of the legislature from being appointed to judgeships within 2 years of their legislative service (there’s no comment about being independently elected).

While bans on serving in judgeships are not unheard of, they are rare and are usually directed at people who have a role in the appointment of judges. Take for example South Carolina, where judges are appointed by the legislature after being reviewed by Judicial Merit Selection Commission made up of legislators and non-legislators. Commission members in particular (S.C. Code Ann. § 2-19-10 (G)) and legislators in general (S.C. Code Ann. § 2-19-70 (A)) are prohibited from being appointed to a judgeship for one year after their service on the commission and/or in the legislature.

Alabama HB 550 is currently pending in the House Constitution, Campaigns and Elections Committee.

“RLD Theory of Liability” Continues to Fall Flat; Multiple Court Decisions Build Momentum in Generic Drug Failure-to-Warn Preemption Litigation

Mon, 19 Mar 2012 08:31:51 GMT

By Kurt R. Karst – As myriad failure-to-warn cases against generic drug manufacturers work through the judicial system in light of the U.S. Supreme Court’s June 23, 2011, 5-4 landmark decision in PLIVA Inc. v. Mensing, 131 S.Ct. 2567 (2011),...

By Kurt R. Karst –

As myriad failure-to-warn cases against generic drug manufacturers work through the judicial system in light of the U.S. Supreme Court’s June 23, 2011, 5-4 landmark decision in PLIVA Inc. v. Mensing, 131 S.Ct. 2567 (2011), as well as a recent petition to the Court concerning Kentucky common law, plaintiffs’ attorneys have increasingly attempted to design around Mensing with new theories of liability. (In Mensing, the Court ruled that FDA’s regulations preventing generic drug manufacturers from changing their labeling except to mirror the label of the brand-name, Reference Listed Drug (“RLD”) manufacturer whose drug product is approved under an NDA preempt state-law failure-to-warn claims against generic drug manufacturers, because generic drug manufacturers are unable to comply with both federal and state duties to warn.) One such “design around” theory we’ve prevously discussed is the so-called “RLD theory of liability,” which posits that FDA’s regulations impose new or additional responsibilities on an ANDA sponsor whose drug product is unilaterally designated by FDA as an RLD in the Orange Book when the brand-name NDA RLD is no longer marketed. Under this theory, plaintiffs’ attorneys argue that the Court’s Mensing decision is inapplicable and that a court should employ the impossibility preemption analysis utilized in the U.S. Supreme Court’s March 2009 decision in Wyeth v. Levine, 555 U.S. 555 (2009), applicable to brand-name drug products approved under an NDA.

Earlier this year, the U.S. District Court for the Northern District of Georgia (Atlanta Division) handed down the first federal court ruling on the RLD theory of liability in Moore v. Mylan, Inc., No. 11:1-cv-03037-MHS (N.D. Ga. Jan. 5, 2012). As we reported, Judge Marvin H. Shoob shot down RLD theory arguments concerning Mylan’s RLD version of DILANTIN KAPSEALS (extended phenytoin sodium) Capsules approved pursuant to an ANDA suitability petition, stating in his opinion that the plaintiff failed to show “how Mylan acquired all of the same rights as a brand name drug manufacturer simply by manufacturing one drug that was an RLD” and how “Mylan’s manufacture of one RLD converted Mylan into a brand name drug manufacturer with the right to use the [Changes Being Effected (‘CBE’)] process to change the label of any of its drugs . . . .”

A trio of recent federal court decisions have followed Moore. In each case, the courts rejected plaintiffs’ RLD theories of liability.

In Cooper v. Wyeth, Inc., No. 09-cv-929-JJB (M.D. La. Mar. 6, 2012), which concerns metoclopramide, plaintiffs argued that “becoming an RLD at some point for metoclopramide oral solution imbues Teva with NDA duties and liability for metoclopramide tablets,” a pharmaceutically inequivalent drug allegedly ingested by plaintiffs. Giving great weight to FDA statements on RLD status (see, e.g., 72 Fed. Reg 39,629 (July 19, 2007)), the court found ruled that “Teva does not hold NDA status by virtue of becoming an RLD and thus does not bear the burden of its brand name counterpart. It is the FDA that is responsible for mandating changes in labeling, and as Mensing recognized, NDA-approved drug makers alone retain duties above and beyond those of generic drug makers.” That’s some pretty nice language for generic drug manufactures!

In another Louisiana decision also concerning metoclopramide – Morris v. Wyeth, Inc., No. 09-cv-0854 (W.D. La. Feb. 21, 2012) – the court denied plaintiff’s motion to alter and/or amend the court’s October 19, 2011 judgment dismissing the generic drug manufacturers from the case. Plaintiffs asserted that “a generic manufacturer, which has a product classified as an RLD, has the same discretion as a brand name manufacturer to unilaterally change the product’s warning label,” and as such, FDA’s “regulations do not preempt a failure to warn claim against a generic drug manufacturer if its drug is classified as an RLD.” Citing Moore, the court rejected ths argument saying that “it assumes, without authority, that the FDA considered TEVA to be a brand name manufacturer with the requisite duty to unilaterally change its product’s labeling simply because FDA designated TEVA’s metoclopramide as the RLD.”

Finally, in In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, MDL Docket No. 2226 (E.D. Ky. Mar. 5, 2012), the court dismissed myriad claims against manufacurers of generic versions of DARVON (propoxyphene), including plaintiffs’ RLD theory of liability. (Our friends over at Drug and Device Law Blog previously discussed the decision – see here.) Citing both the Moore decision and the same Federal Register notice relied on by the court in Cooper, the court stated in its decision that plaintiffs provided “no authority to support their contention that when a generic drug manufacturer becomes an RLD holder, it is thereby empowered to independently change the drug’s warning label,” and that “is unpersuaded that Mylan and Watson are subject to liability based on their status as RLD holders.”

In addition to the four federal court decisions dismissing RLD theory of liability claims, there is a growing number of state courts that have also considered and rejected this theory.

Sincoskie v. West-Ward Pharms., No. MER-L-2643-10 (N.J. Super. Ct. Law Div. Nov. 4, 2011) (Transcript of Motions): In a ruling from the bench, the court held that warnings-based claims against a generic drug designated by FDA as the RLD are equally preempted as those against any other generic drug manufacturer. The court, accordingly, held that the claims against the manufacturer whose generic drug had been designated as the RLD must be dismissed.
Yamane v. Wyeth, No. 08-1-349K (Cir. Ct. Haw. Jan. 3, 2012): The court held that claims against generic drug manufacturers for failure to warn are barred by Mensing. The court found that FDA’s designation of a generic drug as the RLD does not change that result, and that manufacturers of the RLD are entitled to the full protections of Mensing.
Robinson v. Mylan Pharms., Inc., No. 0247 (Phil. Ct. Comm. Pleas. Dec. 2, 2011): The Philadelphia Court of Common Pleas, in consolidated litigation over generic phenytoin, dismissed all claims brought by certain plaintiffs against the generic drug manufacturers as preempted. Among other things, the plaintiffs argued that FDA’s RLD designation of the defendants’ product precluded preemption. Despite these arguments, the court ordered that all claims brought by the plaintiffs at issue against the generic drug manufacturers be dismissed.

6th Circuit Finds Local Ordinance Prohibiting Advertising Benches Constitutional

psalk@albanylaw.edu (Patricia E. Salkin) — Mon, 19 Mar 2012 05:13:04 GMT

The plaintiff, Bench Billboard Company (“BBC”), has a business running advertising benches throughout Kentucky. The defendant city of Covington enacted an ordinance prohibiting advertising benches on the public right of way. BBC failed to remove their benches to comply with the ordinance and, subsequently, the city confiscated BBC’s benches. BBC commenced this action to challenge the constitutionality of the city’s ordinance. A few years after commencement, the city repealed the ordinance and enacted a new ordinance imposing the same requirements but with some exceptions for: sandwich boards and setouts of merchandise abutting a business, news racks, temporary signs for upcoming events, things placed by quasi-governmental organizations, and temporary scaffolding. The parties settled all claims under the initial ordinance and the city sought declaratory judgment of the present ordinance’s constitutionality. BBC revised its suit, alleging the current ordinance violated their First and Fourteenth Amendment rights and sued the Transit Authority of Northern Kentucky (“TANK”) under equal protection claims. The district court granted summary judgment for TANK and for the city; BBC appealed.

The court first deals with BBC’s claim against TANK. TANK argues, and the district court agreed, that BBC lacked standing to bring a suit against TANK. To find standing, the court must find that BBC suffered an injury, there is a causal link between the injury and the defendant’s conduct, and that it is likely there will be a favorable decision for the plaintiff. The city contacted TANK and requested that they voluntarily remove advertising panels from their buses. Although TANK, a public utility is not subject to the ordinance, they voluntarily complied with the city’s request and also erected their own benches. BBC argues that TANK, as exempt from the zoning laws, could have adopted BBC’s benches as its own, thus circumventing the ordinance. The court finds that TANK had no say in the enactment of the ordinance and took no affirmative steps to remove BBC’s benches. Similarly, TANK had no authority to permit BBC to install benches that would be exempt from the ordinance. Thus, the court finds no causal link between TANK’s action and BBC’s alleged injury, therefore, holds that BBC lacks standing as against TANK.

Next, the court turns to BBC’s claims against the city. The court initially deals with BBC’s as-applied First Amendment claims. The court finds that regulation of expression must be narrowly tailored to serve a “significant government interest” and must also “leave open ample alternative channels for communication of the information.” Here, the court finds that the government’s interest in aesthetics and safety are significant interests. BBC argues that the ordinance is underinclusive because the various exceptions make the ordinance meaningless. The court rejects this argument, finding that some of the exceptions, such as that for something placed by a quasi-governmental organization is actually exempt from the ordinance anyway. Further, allowing small things such as news racks could outweigh the city’s governmental interests. Thus, the court finds that the ordinance is narrowly tailored. Next, the court discusses whether there are “ample alternative channels for communication.” The court points out that BBC is still able to distribute literature, advertise on the radio, television, or print, and can also place benches on private property. Thus, the court finds there there are “ample channels of communication, and since the ordinance is narrowly tailored, the court holds it is constitutional.

Next, the court discusses BBC’s equal protection claims. Equal protection requires laws to not classify people arbitrarily and to meet a rational basis test. BBC again argues that the ordinance is underinclusive because of the exceptions. The court finds “that an exception [in an ordinance] will rarely . . . invalidate a statute, unless the distinction . . . is the result of invidious discrimination.” Here, the court points out that BBC has offered no evidence of invidious intent by the city. Further, there are rational reasons for the city to grant certain exceptions such as the size and temporary nature of the things under the exceptions. Thus, the court holds that the ordinance does not violate the Equal Protection clause.

Finally, the court examines BBC’s argument that since their benches have been in continuous existence for over ten years, it was entitled to non-conforming use. The court finds that non-conforming use applies only to zoning ordinance. Here, although the ordinance affects land use, the ordinance is not a zoning ordinance. The ordinance is in the city’s Code of Ordinances, not the zoning code, and further, the enactment procedure reflects that the ordinance was not meant to be a zoning ordinance. Thus, since the court finds the ordinance is not a zoning ordinance, BBC is not entitled to non-conforming use. Further, since BBC was only licensing the land, they did not have an actual vested property right; a prior land use right may not be asserted on a personal right or license. Thus, the court holds, BBC has no rights by prior land use.

Bench Billboard Co. v. City of Covington, Ky., 2012 WL 447486 (6th Cir. 02/13/2012)

The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/12a0179n-06.pdf

Filed under: Current Caselaw, Signs, Standing

Fed. Dist. Court in Texas Dismisses Due Process and Takings Claims Following Denial of Rezoning

psalk@albanylaw.edu (Patricia E. Salkin) — Sun, 18 Mar 2012 04:19:51 GMT

The plaintiffs purchased five lots in the Beverly Hills subdivision of San Antonio, Texas, with the intent to develop high-end homes. After the housing crises, the plaintiffs reevaluated their plans, and as a result sought a rezone of their lots. The plaintiffs’ application was denied. Plaintiffs filed suit in the United States District Court, Western District of Texas, alleging their substantive due process rights had been violated, that their land had been taken without compensation, that there was a civil conspiracy against their application, and a breach of fiduciary duty. The defendants moved to dismiss. The Western District of Texas dismissed all counts against the various defendants.

In count one, the plaintiffs claimed that the zoning regulations deprived them of their substantive due process rights, as the denial deprived the plaintiffs of the right to use, enjoy and develop their property. In addressing this ground for appeal, the court provided that for the regulation to be constitutional, the decision to deny the application must satisfy the rationale basis test. In this matter, the court first assumed that the plaintiffs had a protected property interest. Next the court provided that for this count to survive, the plaintiffs must demonstrate that there was no rational basis for the zoning determination made by the local governmental entity. Since the plaintiff entirely failed to plead lack of a rational basis, and only alleged improper motive, the plaintiffs did not meet their initial burden, and this count was therefore dismissed.

The court next addressed the plaintiffs’ third count, civil conspiracy, which alleged that the defendants conspired against plaintiffs with the intent to deprive them of equal protection of the law, in violation of 42 U.S.C. § 1985(3). The court provided that the Supreme Court has held that in order to properly make a conspiracy claim, the plaintiff must show that there was racial or class-based discriminatory action motivating the conspirators and that the conspiracy intended to interfere with rights that are protected against encroachment. The District Court held that the plaintiffs did not meet the Supreme Court requirements for conspiracy, and therefore the plaintiffs did not state a claim under Section 1985(3). The court also found that since the plaintiffs failed to allege any substantive due process violations, or any collaboration between the private and public actors, the 42 U.S.C. § 1983 claim also fails and must be dismissed.

The District Court also found the plaintiffs’ takings claim unripe and dismissed it, as the plaintiffs have failed, heretofore, to seek just compensation in state court.

Lee v. Whispering Oaks Home Owners’ Ass’n, 797 F.Supp.2d 740 (W.D. Texas, 2011)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=724918903231850406&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

Filed under: Current Caselaw, Due Process, Takings

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