Iowa Grandparent Visitation Statute Struck Down

In re Howard, No. 07/02-0211 (Iowa May 7, 2003); 71(44) U.S. Law Week 1712 (May 20, 2003)

The Iowa Supreme Court ruled that an Iowa law that allowed grandparents to seek visitation with their divorced children's children violated that state's constitution.  Under the law, visitation could be ordered if visitation was in the best interests of the child and the grandparent had established a substantial relationship with the child prior to the filing of the divorce petition.  The court ruled that there must be a presumption that a fit parent acts in the child's best interest, a presumption that is not diminished by the fact that the marriage is no longer intact.  Furthermore, there must be a showing that the absence of this visitation harms the child, not merely that such visitation is in the child's best interest...

Found in DMHL Volume 23 Issue 1

California Tax on Cigarettes to Fund Anti­ Tobacco Ads Upheld

R. J. Reynolds Tobacco Co. v. Banta, 272 F. Supp. 2d 1085 (E.D. Cal. 2003); 72(4) U.S. Law Week 1060-61 (Aug. 5, 2003)

A California law that directed a state agency to develop a media program to discourage tobacco use with funding provided by a surtax on wholesale cigarette sales was upheld by the U.S. District Court for the Eastern District of California.  California voters in 1988 enacted a 25¢ per pack surtax with the revenue placed in a limited-use fund, a portion of which is used for the media campaign. Various tobacco companies challenged the law, asserting that the state annually spends $25 million on anti-smoking ads and the surtax compels them to fund speech with which they disagree...

Found in DMHL Volume 23 Issue 1

Ban on Selling "Graphically Violent" Videos to Minors Unconstitutional

Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003); 71(48) U.S. Law Week 1771 (June 17, 2003)

The Eighth Circuit ruled that a county ordinance that banned making "graphically violent" video games available to minors violates the First Amendment.  The county had argued that the ban was necessary to prevent psychological harm to youth and to aid parents in protecting their children's well being.  The court determined that video games are speech entitled to full First Amendment  protection and therefore the restrictions on this speech had to satisfy "strict scrutiny."  The court concluded the first rationale offered by the county for this restriction was insufficiently documented and the second rationale was inadequate....

Found in DMHL Volume 23 Issue 1

Juvenile Curfew Ordinance Found Unconstitutional

Ramos v. Town of Vernon, 331 F.3d 315 (2d Cir. 2003); 71(48) U.S. Law Week 1772-73 (June 17, 2003)

The Second Circuit struck down the juvenile curfew ordinance of a town in Connecticut. The ordinance made it unlawful for any person under 18 to be in any public place between 11 p.m. and 5 a.m. Sunday through Thursday, or between midnight and 5 a.m. on Friday and Saturday nights.  Allowed exceptions included juveniles accompanied by an adult or juveniles engaged in employment.  The curfew had three stated goals: protecting minors from harm at night, protecting the general population from nighttime juvenile crime, and promoting responsible parenting. The court determined the ordinance infringed "a minor's right to move about freely when not prohibited from doing so by his or her parents" and that it should receive "intermediate scrutiny" under the 14th Amendment's equal protection clause.  This in turn required that the town show a "direct, substantial relationship" between the factual premises of the curfew and its restrictions.  The Second Circuit concluded there was insufficient evidence juveniles commit or are victims of nocturnal street crimes to justify the

Found in DMHL Volume 23 Issue 1

Law Struck Down that Established Means to Override Advance Directives and Involuntarily Medicate Individuals Civilly Committed or Imprisoned

Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003)

The Second Circuit struck down a Vermont law that allowed the state to involuntarily medicate individuals who had been civilly committed or judged  mentally ill while imprisoned, notwithstanding a pre-existing durable power of attorney (DPOA) for health care to the contrary.  The Second Circuit ruled that such a law discriminated against individuals with a mental disability in violation of the Americans with Disabilities Act....

Found in DMHL Volume 23 Issue 1

New York Antidiscrimination Insurance Law Does Not Require Parity in Coverage for Physical and Mental Disabilities

In re Polan v. New York Ins. Dep't, 814 N.E.2d 789 (NY 2004)

Efforts have been launched across the country to enhance the benefits available to individuals with a mental illness under employer-provided health care plans.  Such plans often include long-term disability insurance coverage that provides income or other benefits for an employee that becomes disabled.  For a physical disability, this coverage may last as long as the disability continues or until the age of 65 when Social Security and Medicare benefits become available.  For a mental disability, however, this coverage may be limited to a given period of time, such as two years, notwithstanding that the mental disability may be chronic and leaves the individual unable to work...

Found in DMHL Volume 24 Issue 1

Virginia Supreme Court Rejects Constitutional Challenges to Sexually Violent Predator Commitment Law

Shivaee v. Commonwealth, 613 S.E.2d 570 (Va. 2005)

The U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002), defused most federal constitutional challenges to the civil commitment of sexual offenders under the sexually violent predator (SVP) statutes enacted by many states in recent years.  State constitutions could, nevertheless, provide an alternative basis for challenging these enactments.

Found in DMHL Volume 25 Issue 1

Federal Act Trumps State's Medical Marijuana Law

Gonzales v. Raich, 125 S. Ct. 2195 (2005)

The federal Comprehensive Drug Abuse Prevention and Control Act of 1970 classifies all controlled substances into one of five schedules, with Schedule I drugs considered to have the highest potential for abuse and to lack any accepted medical use.  Since the enactment of this law, marijuana has been classified as a Schedule I drug despite considerable efforts to change this classification.  As a Schedule I drug, the manufacture, distribution, or possession of marijuana is a federal criminal offense, with no exception provided for its medicinal use...

Found in DMHL Volume 25 Issue 1