BOSTON – The U.S. Court of Appeals for the 1st Circuit will hear oral argument this month in cases about sticky concepts in criminal, administrative and child abduction law, and it will weigh the constitutionality of a Maine state law.
On Monday, in IMS Health Inc. v. Mills, the court will consider whether to overturn a District of Maine preliminary injunction against a Maine law concerning prescription “data mining,” which involves selling information from doctors’ prescription records to drug companies for marketing purposes. The Prescription Privacy Law would have allowed Maine doctors to opt out and bar companies from using their prescription data for data mining.
Thomas Knowlton, a Maine assistant attorney general who is leading the defense, said the health data company plaintiffs have conceded that a previous 1st Circuit decision is controlling on the commercial free speech issues they raise.
In that case, IMS Health Care v. Ayotte, the 1st Circuit in 2008 upheld a more restrictive New Hampshire state law barring prescription data mining. The court rejected the notion that the law violated the First Amendment by illegally restricting commercial speech. It also disagreed with arguments that the New Hampshire law was vague and that it violated the commerce clause of the U.S. Constitution, which prohibits states from placing undue burdens on interstate commerce.
“The plaintiffs are still raising other arguments, but we believe the law is constitutional and none of the plaintiffs’ claims have merit,” said Knowlton about the Mills case.
But Tom Julin, a Miami partner at Richmond, Va.-based Hunton & Williams who served as lead trial counsel for the plaintiffs and is also involved in the appeal, said there’s substantial doubt about how the 1st Circuit will rule in the Mills case because the New Hampshire law did not apply to transactions that took place outside the state, while the Maine law does. Julin represents IMS, Source Healthcare Analytics Inc. and Verispan.
“The [Maine] law is violating the commerce clause in that it controls transactions happening outside of the state,” Julin said. “Maine’s position is that its law can reach outside of the state and can ban all of those transactions and can happen entirely outside of the state.”
Other cases slated for a hearing next week include:
• Torres v. Dennehy: On Tuesday, the court will consider an appeal challenging a District of Massachusetts judgment denying Alberto Torres’ habeas petition regarding his 1999 conviction for the first degree murder of his girlfriend’s toddler. Torres raises several questions, including whether he can argue for the first time on appeal that his waivers under Miranda v. Arizona were the “poisonous fruit” of the defendants’ alleged violation of Torres’ Sixth Amendment rights relating to criminal prosecution. Torres claims a trooper and sergeant “deliberately elicited” incriminating statements from him while reading him his Miranda rights in jail. He claims they prompted him to respond to the accusations and make incriminating statements. He further claims that all of these jailhouse statements were violations of Massiah v. U.S. (1964), which held that, without a prior waiver of the right to counsel, incriminating information cannot be deliberately elicited from a defendant who has a right to counsel because of an indictment.
• City of Pittsfield v. EPA: On Wednesday, the court will consider this Massachusetts’ city’s appeal of a U.S. Environmental Protection Agency’s Environmental Appeals Board decision on a permit for a wastewater treatment plant. The board denied review of a revised permit the EPA issued to the city in 2008 governing discharge of treated wastewater into the Housatonic River, despite the city’s claims that the new terms and conditions were “unachievable.” Pittsfield claims the EPA’s board didn’t comply with the Clean Water Act’s “legally mandated appeal procedures.”
• U.S. v. Celestin: Also on Wednesday, the court will weigh the multipronged appeal of Jude Celestin, who was convicted of bank fraud and conspiracy to commit bank fraud in 2008. Celestin claims the District of Massachusetts abused its discretion by not severing his trial from co-defendants. He claims the joint trial violated his Sixth Amendment confrontation rights and that a co-defendant’s pro se representation caused him irreparable prejudice. The appeal will also consider whether the government’s obligations to disclose exculpatory evidence under the 1963 Supreme Court decision in Brady v. Maryland includes information the government claims was never in its “possession custody or control.” Celestin claims the government withheld his time and attendance records from his time as an employee at the bank.
• Nicolson v. Pappalardo: On Thursday the court will consider a child custody dispute brought under the International Child Abduction Remedies Act. The U.S. law allows federal court cases under a 1980 international child abduction agreement. The father, Lucas Nicolson, filed a petition in Maine federal court asking for a ruling to return the child to Australia. The mother, U.S. citizen Erica Pappalardo, asks the 1st Circuit to weigh in on whether the district court erred in finding that the Australia was the child’s habitual residence despite the parents’ estrangement before she was born. The appeal will also consider whether the court should have found that the father consented to the mother’s removal of the child from Australia.
• U.S. v. Rodriguez and U.S. v. Cardosa: Also on Thursday, the court will take up two related District of Massachusetts appeals involving criminal defendants found to be career offenders who were granted reduced sentences because the career offender guidelines overstated the seriousness of their criminal histories. Both defendants were ultimately sentenced under crack cocaine guidelines. The court will consider whether those sentences should be cut because of retroactively amended crack cocaine guidelines.
Sheri Qualters can be contacted at email@example.com.