Tag Archives: 6th Circuit

Court overturns FCC Chattanooga broadband order

MEMPHIS, Tenn. (AP) — A federal appeals court on Wednesday overturned a Federal Communications Commission ruling allowing city-owned broadband services to expand into areas overlooked by commercial providers.

The decision comes as part of a dispute between the FCC and two states, Tennessee and North Carolina, about expanding superfast internet service in their respective cities of Chattanooga and Wilson to surrounding areas.

Both states had passed laws preventing such expansion. The FCC last year voted 3-2 to override those laws. The states then asked the 6th Circuit Court of Appeals to review the FCC’s ruling.

The appeals court said that the FCC’s order pre-empted the state laws and “the allocation of power between a state and its subdivisions.” The court said the FCC’s action requires a “clear statement” of authority in federal law, but the law does not contain a clear statement authorizing pre-emption of Tennessee’s and North Carolina’s laws. Continue reading

Appeals court backs TennCare applicants in lawsuit

By Travis Loller, Associated Press
NASHVILLE, Tenn. — Tennessee’s Medicaid program has to provide applicants with a fair hearing if it cannot process their requests on time, under an order that’s been upheld by a federal appeals court.

Applications for most forms of Medicaid should be processed within 45 days, by law. Applications based on disability are allowed 90 days.

Applicants for TennCare — Tennessee’s version of Medicaid — sued in July 2014, complaining that their applications had been pending for months, and the state had refused to provide hearings.

A federal judge in Nashville issued a preliminary injunction in September 2014 requiring hearings for those whose applications were not timely processed. The injunction is a temporary ruling in effect while the case works its way through the courts. The judge also granted the lawsuit class-action status, meaning anyone in a similar situation to the original plaintiffs could be considered a plaintiff.

The state appealed, asking the 6th U.S. Circuit Court of Appeals to dismiss the lawsuit on technical grounds.

On Monday, a 6th Circuit panel ruled 2-1 in favor of the TennCare applicants.
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Appeals Court: TN school can contract with religious group

The 6th Circuit Court of Appeals has overturned an East Tennessee judge’s ruling that found a contract between the Jefferson County Board of Education and the Christianity-based Kingswood School violated the Establishment Clause of the U.S. Constitution, reports the News Sentinel.

Senior U.S. District Judge Thomas Phillips decided it did not matter whether Jefferson County’s school leaders were simply trying to save money — not souls — when the school system turned to Kingswood to educate students placed into an alternative school program.

Phillips found Kingswood, although the staff did not teach religion to those students or proselytize to them, bore all the trappings of a religious institution — scriptures on report cards, status reports, a few walls — and hosted students in its chapel for nonreligious activities. A preacher was tasked with doing the initial intake procedure with students, although he did not discuss religion, nor did parents ever complain.

Therefore, Phillips opined, the setting itself was “coercive” in advancing religion.

The 6th Circuit disagreed.

“The mere status of Kingswood as a religious organization does not itself give rise to endorsement (of religion),” a three-judge panel ruled. “Furthermore, the religious communications were not targeted specifically at the day students, much less the Jefferson County students in particular, but were disseminated in accordance with the way that Kingswood had always operated as an institution. Imbued with this background knowledge — none of which was a secret — a reasonable observer would not have viewed the arrangement as a governmental endorsement of religion.”

The court also noted Jefferson County’s sole purpose in contracting with Kingswood, which had an alternative day-school program employing teachers, not preachers or Sunday school teachers, was to save money, not advance religion.

“It is clear that the taxpayers, school board, parents and students all benefited from the relationship between the board and Kingswood,” the opinion stated. “While this benefit was being conferred, parents and children received only slight exposure to religion.”

It wasn’t parents who sued but teachers who either lost their jobs as a result of the school board’s decision to contract out alternative education or feared they might.

6th Circuit Court of Appeals upholds gay marriage ban in TN, 3 other states

By Dan Sewell, Associated Press
CINCINNATI — A month after the U.S. Supreme Court declined to rule on gay marriage, the issue is headed its way again.

A federal appeals court Thursday halted a run of rulings supporting same-sex marriage by the U.S. courts that are the last line for appeals just below the Supreme Court. The 6th U.S. Circuit Court of Appeals panel instead upheld laws against the practice in four states — Ohio, Michigan, Kentucky and Tennessee.

Attorneys for gay plaintiffs say they will ask the Supreme Court to hear their arguments, and the split created Thursday among the federal appeals courts makes it more likely they will agree to this time.

Justice Ruth Bader Ginsburg had explained in a September speech in Minnesota that the lack of a split in the appeals courts made Supreme Court review of the issue unnecessary. But she said “there will be some urgency” if the 6th Circuit allowed same-sex marriage bans to stand.

One month ago Thursday, the Supreme Court turned away appeals from five states seeking to uphold their same-sex marriage bans. That action had the effect of further expanding gay marriage.

The 6th Circuit panel, in its 2-1 ruling, said changing the definition of marriage should be done through the political process, not by judges and lawyers.

“Surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another,” wrote Circuit Judge Jeffrey Sutton, writing for himself and a fellow George W. Bush appointee.

The dissenting judge suggested that Sutton and Judge Deborah Cook might have wanted to push the issue on to the high court.
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Appeals court rules sanctions appropriate for ‘frivilous’ TN lawsuit against Obama presidency

KNOXVILLE, Tenn. (AP) — A federal appeals court has upheld sanctions against a Knoxville legal foundation that claims President Obama is not legally qualified to be president.

According to court records, in 2012 the Liberty Legal Foundation sued the National Democratic Party, the Democratic National Committee and others, including former Tennessee Democratic Party Chairman Chip Forrester.

The suit claimed the Democratic officials misrepresented President Obama as qualified for office. The suit claimed that Obama is not a natural-born citizen of the United States.

In a Tuesday ruling, the 6th U.S. Circuit Court of Appeals upheld a lower court ruling that found the suit to be frivolous and said the claims have no basis in law.

The appeals court upheld sanctions against the foundation in the form of reasonable attorney fees for the defendants.

Note: The short 6th Circuit ruling is HERE.

Court upholds 15-year sentence of TN man for possessing 7 shotgun shells

By Brett Barrouquere, Associated Press
A federal appeals court judge on Thursday called for an overhaul of federal sentencing rules after upholding the 15-year prison term of a Tennessee man convicted of possessing seven bullets.

Lawmakers need to reconsider the Armed Career Criminal Act which “over-criminalizes” certain conduct by imposing mandatory minimum sentences for some crimes, said Jane Branstetter Stranch of the U.S. 6th Circuit Court of Appeals in Cincinnati.

Stranch’s comments came in a concurrence to an opinion by the appeals court upholding the sentence of Edward Lamar Young of Hixon, Tennessee. Young pleaded guilty in January 2013 to being a felon in possession of ammunition after being found with the shells, which he acquired helping a neighbor dispose of her late husband’s belongings.

“Precedent compels us to conclude that this sentence does not violate the Constitution,” Stranch said. “But holding that a sentence is constitutional does not make the sentence just.”

In an unsigned majority opinion, Stranch and judges Richard Allen Griffin and Helen White declined to address the fairness of Young’s sentence, instead saying binding precedent required that it be upheld.

Young’s defense now has the option to ask the full 6th Circuit to rehear the case or appeal to the U.S. Supreme Court.

“I anticipate that we are not finished as far as whether we will continue the fight,” said Young’s attorney, Chris Varner of Chattanooga, Tennessee.
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Protester rights argued in Occupy Nashville hearing before special panel of judges

By Brett Barrouquere, Associated Press
CINCINNATI — A special three-judge panel focused on issues of camping, protests, free speech and executive power on Monday during arguments in an appeal of a lawsuit brought by Occupy Nashville protesters arrested on War Memorial Plaza in October 2011.

The panel hearing the case in at the U.S. 6th Circuit Court of Appeals in Cincinnati and made up of judges from around the country questioned whether Tennessee officials acted properly in imposing a last-minute curfew for the plaza and in arresting those who refused to leave War Memorial Plaza in Nashville in October 2011.

“Is camping speech?” Judge Kent Jordan asked attorneys for two Tennessee officials.

U.S. District Judge Aleta Trauger last year ruled that Tennessee Safety Commissioner Bill Gibbons and former General Services Commissioner Steven Cates violated protesters’ rights when they promulgated a last-minute curfew for the plaza, then had those who refused to leave arrested. Attorneys for the state asked that the ruling be overturned. Even protected speech can be subject to reasonable time and place restrictions, she said.

Attorney Dawn Jordan, representing Gibbons and Cates and who is no relation to the judge, argued that the protesters had no right to stay on the plaza all day, every day.

Dawn Jordan argued that the job of the two officials to protect state property and maintain order. The curfew and arrests were necessary to deal with reports of crime, sanitation problems, trash and damage to the plaza in front of the state Capitol, she said.

“Occupying 24-7 is not a clearly established First Amendment right,” Dawn Jordan said. “The situation on the plaza reached a breaking point. Something needed to be done.”

David Briley, an attorney for the protesters, told the judges there were easier and more narrowly tailored ways to handle the protesters and any complaints they may have had about the conditions and safety on the plaza.

By applying a curfew to all gatherings on the plaza and doing it without a chance for the public to comment on the proposed regulation, the state went too far, Briley said.

“If they had done it with the proper procedures, what would be wrong with it?” Judge David Sentelle asked.

“It’s improper,” Briley replied. “We don’t know what a gathering means. It doesn’t define what occupancy is.”

“This is what trespass laws do,” Judge Duane Benton said. “They get to the presence somewhere.”

Judges Jordan, based in Philadelphia with the 3rd Circuit Court of Appeals, Benton, of the St. Louis-based 8th Circuit, and Sentelle, with the Washington, D.C. Circuit Court of Appeals, were appointed to the case because Gibbons is married to 6th Circuit Judge Julia Smith Gibbons and all the judges in the circuit have recused themselves.

The Occupy movement began in lower Manhattan in September 2011 with the idea of bringing attention to wealth inequality and corporate influence in government. Occupy Nashville protesters began camping outside the Capitol on Oct. 8. At the time the plaza had no rules governing when or how long citizens could demonstrate there.

By the third week, some homeless people who were not part of the protest had begun camping on the plaza. Protesters grew concerned about sanitation and crime. A delegation met with Cates to express their concerns.

Cates told the protesters they would have to leave the plaza at night. Then he had a curfew and use policy drawn up that the state put into effect the following day.

Protesters who refused to leave were arrested in the early hours of Oct. 28 and again on Oct. 29, but both times, the Judicial Commissioner refused to sign the warrants and the protesters had to be released. They asked for and received an injunction, barring the state from enforcing the new policy.

The state eventually adopted a less restrictive policy, and the Legislature passed a law banning camping on state-owned property not specifically designated for that purpose.

On arguments in appeal of same-sex marriage lawsuit involving TN, other states

Plaintiffs and attorneys in the Tennessee same-sex marriage appeal said Wednesday afternoon they were hopeful following three hours of arguments in six cases across all four states of the 6th Circuit U.S. Court of Appeals, according to the News Sentinel.

“I thought everyone was very prepared and the court was very engaged, and it was a very intellectual exchange,” said Bill Harbison, a Nashville lawyer who argued on behalf of the Tennessee couples.

The three-judge panel peppered attorneys from both sides in each case with questions over the value of the judicial process versus the legislative process and states’ rights versus the rights of individual plaintiffs. Most questions came from Judge Jeffrey Sutton, a George W. Bush appointee, and Judge Martha Craig Daughtry, a senior judge appointed by Bill Clinton.

Sutton repeatedly asked plaintiffs whether suing for marriage equality was the best tactic for their cause rather than winning over society with a popular vote.

While a popular vote in their favor would be nice, recognizing her marriage is too important to wait, said Sophy Jesty, a plaintiff in the case and a veterinary medicine faculty member at the University of Tennessee.

“For the people who are in it now, five, 10, 20 years makes a great deal of difference,” she said. “This is my life. This is my daughter’s life growing up. These folks’ lives are happening now.”

Acting Solicitor General Joseph Whalen argued on behalf of the state, who insisted Tennessee’s interest in providing marriage to opposite-sex couples lies with ensuring children born from accidental pregnancies have a chance at a stable home life.

The arguments began at 1 p.m. with a case from Michigan, where the federal judge overturned that state’s ban on same-sex marriage. Ohio, Kentucky and Tennessee followed.

Note: Below is an AP summary of the legal status of lawsuits in all four states
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GOP legislators file one of three legal briefs supporting ban on same-sex marriage in TN

With a three-judge panel of the 6th U.S. Circuit Court of Appeals scheduled to hear Wednesday a landmark same-sex marriage appeal including Tennessee’s law, groups representing law enforcement officers, military families, psychologists, lawmakers and others have filed more than two dozen friend-of-the-court briefs in the case, reports the News Sentinel.

Twenty-six of those briefs support recognizing gay marriage in Tennessee. Three back the state’s ban on it.

Many of the same organizations, none of whom are parties in the case but still have an interest in the outcome, also have filed briefs in the Kentucky, Michigan and Ohio case. Cases in those states are also scheduled for oral arguments on Aug. 6 at the Sixth Circuit Court of Appeals in Cincinnati.

The amicus briefs delve into business, history, mental health and politics, and touch on topics ranging from child-rearing and threats to national security and religious freedom.

Some groups filing are among those you would expect: the American Civil Liberties Union, the Anti-Defamation League, and the North Carolina Values Coalition. Others represent individuals or groups of people who are not typically associated with gay rights, like churches, law enforcement and major private corporations such as Starbucks

The Episcopal Church, United Church of Christ and activist groups comprised of Mormons, Presbyterians, Lutherans, Jews and other religions and denominations joined in a brief arguing that affirming same-sex marriages would not interfere with congregations’ ability to practice their own faith.

In fact, the brief points out, some religions have already disallowed marriages that are otherwise legal: Conservative Judaism prohibits interfaith marriages, the Mormon church once discouraged interracial marriages and the Roman Catholic Churches teaches that remarriage of divorced spouses is not permitted under God’s law.

Two separate briefs — one filed by law enforcement officers and another by military personnel and their families — both argue that gay and lesbian soldiers and first responders put their lives on the line and should be given equal recognition.

…But for all the briefs filed against the state, at least one brief is made up of its own: Tennessee state lawmakers.

The brief was filed by the conservative Christian group Alliance Defending Freedom, which is affiliated with the Family Action Council of Tennessee.

Thirty-seven state representatives, 16 senators and Lt. Governor Ron Ramsey, all Republicans, signed the brief. Among them are Knoxville lawmakers Rep. Harry Brooks, Rep. Bill Dunn and Sen. Stacey Campfield.

In their brief, the lawmakers dismiss the idea that a ban on same-sex marriage is discriminatory. Instead, they argue the question at hand — whether Tennessee must recognize marriage licenses in other states — “depends on whether a sovereign state can determine for itself the definition of marriage within its own borders. “

Their answer, of course, is yes — it is up to the people of Tennessee to decide whether marriage should include same-sex marriage.

Note: The News Sentinel’s Megan Boenke also has a lengthy report on the overall Tennessee case, focused on a Knoxville same-sex couple who are among the plaintiffs in the lawsuit. An excerpt:

A three-judge panel is slated this week to hear oral arguments in the case — or at least on a preliminary injunction in the case — before a three-judge panel of the 6th Circuit U.S. Court of Appeals in Cincinnati.

Each side will get 15 minutes. On that same afternoon the panel will hear similar landmark cases, albeit ones further along, from Michigan, Kentucky and Ohio.

The circuit will become the third federal court of appeals to hear same-sex marriage cases, with the 10th Circuit overturning bans in Oklahoma and Utah earlier this summer. The 4th Circuit, in a July decision affecting the entire circuit, overturned a Virginia ban on same-sex marriages, and the 7th Circuit is slated to hear oral arguments on cases out of Indiana and Wisconsin late this month.

Kurita Loses Appeal of 2008 State Senate Loss

By Eric Schelzig, Associated Press
NASHVILLE, Tenn. (AP) — Former state Sen. Rosalind Kurita on Thursday lost a federal appeal of her ouster as the Democratic nominee in her 2008 bid for re-election to the Tennessee General Assembly.
In a brief ruling, the U.S. 6th Circuit Court of Appeals upheld a federal judge’s refusal to reinstate Kurita to the ballot after Democratic officials declared her 19-vote primary win as “incurably uncertain.”
The legal team for Kurita’s primary opponent and successor, Clarksville attorney Tim Barnes, argued that there had been heavy Republican crossover voting and alleged that poll workers directed his supporters to vote in the wrong primary.
Democrats were angry with Kurita after casting a key vote in favor of Sen. Ron Ramsey in the Republican’s 2007 election as Senate speaker. Ramsey had subsequently named Kurita as Senate speaker pro tempore, the ceremonial No. 2 position in the upper chamber.

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