Marcellus Shale and Municipal Empowerment in New York

By Zachary Kansler, Albany Government Law Review

Introduction

Natural gas deposits in the Marcellus Shale geologic formations have been a polarizing issue in New York State, spanning areas of concern including public health, environmental welfare, and municipal authority, among others.  For some, Marcellus Shale is a symbol for a movement or point of view, and for others, the extraction of natural gas deposits in Marcellus Shale formations has had a more profound effect, including families alleging that their water supply has been tainted by drilling and extraction processes known as hydrofracking.[1]  Many believe the adverse effects of hydrofracking can be addressed, and hopefully mitigated through various means, including state regulation.[2]  In addition, it is also possible that local governments may have the authority to address natural gas extraction as well. However, until recently, it was not known whether such authority existed.    Continue reading “Marcellus Shale and Municipal Empowerment in New York”

Vertical (Mis)Communication: “Re-criminalization” of Marijuana in Massachusetts and Newfound Federal Deference to State Marijuana Laws

Stephen Dushko, Staff Writer

On November 4, 2008, the Commonwealth of Massachusetts voted on a ballot question entitled “An Act Establishing a Sensible State Marihuana Policy,” which had the effect of decriminalizing the possession of amounts of marijuana one ounce or less.1 The Act passed by a sixty-five percent majority vote.2 Under the new law, possession of one ounce or less of marijuana is a civil infraction, subject only to a $100 fine and forfeiture of the marijuana; all other criminal and civil penalties are prohibited, with an important exception.3 Previously, possession of any amount of marijuana was subject to imprisonment of up to six months and a fine of up to $500.4 The fact that a majority of voting citizens in Massachusetts favored decreasing penalties for marijuana possession may indicate that the prevailing social norms in Massachusetts, concerning consumption of THC,5 have changed since marijuana was initially outlawed, or it may reflect a recognition that the economic and social costs of labeling marijuana use criminal outweigh the benefits.6 Regardless of the rationale, possession of a small amount of marijuana is no longer an arrestable offense under Massachusetts state law.

Apart from the obvious implications for Massachusetts as a whole, this change in the law has different implications for the localities within the state, and provides an opportunity to examine the interaction with local, state, and federal law.  On the local level, governments that wish to maintain the more stringent set of rules are driven to enact regulations that increase penalties for possession or use of marijuana.  Framingham, Massachusetts, for example, enacted health regulations shortly after the state act went into effect that increased the penalties both for the user and the owner of any public establishment in which marijuana is used.7 Smoking marijuana in public, in Framingham, is now subject to a $50 fine, and the owner of an establishment in which a patron smokes marijuana will pay $100 for the first incident. 8 For the second offense, a $200 fine is imposed and up to $300 for the third.9 While these penalties are certainly not as severe as the previous state law, it is apparent that a majority of the Framingham town board was on the minority side of the Question 2 vote.

At first blush, this looks like a locality rebuffing the decision of the majority of Massachusetts for lessening the penalty for possession.  However, § 32L specifically provides that the political subdivisions of the state may enact ordinances or bylaws to prohibit public consumption of marijuana.10 Framingham is not the only example of a town that has either taken advantage of, or considered taking advantage of, this exception to the new general rule.11 It is also of paramount importance to consider the fact that the general federal prohibition on both consumption and possession of marijuana is still in effect.  The Supreme Court has found this prohibition constitutional and unaffected by state law to the contrary.12 Continue reading “Vertical (Mis)Communication: “Re-criminalization” of Marijuana in Massachusetts and Newfound Federal Deference to State Marijuana Laws”

Safford v. Redding in Context: A Brief History of Corporal Punishment at Common Law

Robert Magee,* Lead Writer

I. Introduction

Today, the Supreme Court of the United States will hear arguments in the case of Safford Unified School District v. Redding.1 The case involves the strip search of a thirteen-year-old girl, Savana Redding, on the orders of her school’s vice principal after she had been implicated in a scheme to distribute prescription strength ibuprofen.  The strip involved her taking off all her clothes and shaking out her underwear in front of the vice principal’s female assistant and the school’s female nurse.2 Ms. Redding instituted the present section 1983 claim for violation of her Fourth Amendment right against unreasonable search and seizure.3

Though the precise issue today will be whether the Fourth Amendment protects students against being strip searched by school officials and, if not, what level of suspicion must school officials have before doing so, the facts of the case invoke a debate which has murmured throughout the history of the common law and education: what authority does a school official possess over the person of a student?  The treatment at common law of corporal punishment, the physical discipline of students, sheds valuable light on this debate, and provides insight into what the court may be considering during today’s argument.

II. The In Loco Parentis Doctrine

The legal mechanism which allowed corporal punishment by educators against students notwithstanding laws against battery was the doctrine of in loco parentis, the legal fiction that certain individuals, for our purposes educators, occupy the position of parent in relation to students.4 In loco parentis enabled educators to assume the role of the child’s parent when children came under their charge and thus allowing them to inflict corporal punishment in certain instances.  It was fundamentally accepted that parents had the authority to inflict corporal punishment, and therefore so could the educator.5 Continue reading “Safford v. Redding in Context: A Brief History of Corporal Punishment at Common Law”

Football Death Leads to Reckless Homicide Charges: Kentucky Embarks on Unprecedented Case

Amanda Sherman, Staff Writer

I.  Background

On August 20, 2008, in Louisville, Kentucky, the Pleasure Ridge Park High School (PRPHS) football team was practicing in 94 degree heat.1 What was reportedly a grueling practice (with one parent describing the coach’s style as “training young teenagers for the Navy SEALS team”),2 ended tragically when fifteen year-old Max Gilpin collapsed after completing a series of wind sprints.3 Three days later, Gilpin died due to complications from heat stroke.4

When events as unfortunate as this occur, it is a normal response to look for someone or something to blame, and certainly, to seek justice.  In the past, situations similar to Max’s have resulted in the deceased’s family bringing a civil suit, as was the case after Minnesota Viking’s offensive tackle Korey Stringer died of heatstroke in 2001.5 Gilpin’s case is unique, however, because although Max’s parents have filed a civil suit for negligence and reckless disregard against the PRPHS coaching staff, criminal charges have also developed.  The Commonwealth is bringing criminal charges against head coach, David Stinson.6 On January 22, a grand jury indicted Stinson on a charge of reckless homicide in connection with Max’s death.7

The decision to bring criminal charges against Stinson is drawing a lot of attention and raising many questions.  Why was David Stinson the only coach charged criminally?  Where were the other parents who were watching the practice?  Why were no other players as seriously affected by the heat that day?  Time (and perhaps a jury) will help answer some of these questions, however others may remain unanswered even after a verdict is delivered.  Continue reading “Football Death Leads to Reckless Homicide Charges: Kentucky Embarks on Unprecedented Case”