Thursday, September 02, 2010Last Update: 10:01 PM PT

     (CN) - The 9th Circuit overturned the conviction of a member of the "No More Deaths" border aid organization, ruling that the group's practice of placing bottles of water in the desert along immigrant paths does not constitute littering.
     To help prevent the deaths of immigrants who are illegally trying to enter the United States, members of No More Deaths place gallon-sized bottles of water along paths that run through the Buenos Aires National Wildlife Refuge.
     Daniel Millis and three other volunteers were caught leaving the water by officers from the U.S. Fish and Wildlife Service, and Millis was given a citation for disposing waste in a national forest.
     The district court convicted him on the charge despite Millis's argument that the group was engaged in humanitarian aid by leaving the bottles and that "humanitarian aid is never a crime." Millis also argued that the group picked up the empty bottles.
     On appeal, a 2-1 majority based in Las Vegas ruled that under the definition of garbage, sealed bottles of water meant for consumption did not constitute disposal of waste.
     "Millis likely could have been charged under a different regulatory section, such as abandonment of property or failure to obtain a special use permit. However, that is not the question presented here," Judge Sidney Thomas wrote for the majority.
     In a dissent, Judge Jay Bybee wrote, "Under the majority's definition, any number of objects, for example, sleeping bags, packaged food, clothing, flashlights, plastic bags, or shoes can be left in the wildlife refuge without incurring liability merely because someone thought that the discarded item might be useful to the next person passing through."

     (CN) - The 7th Circuit ruled that a Roman Catholic group at the University of Wisconsin at Madison can receive funding for religious activities.
     The University declined to reimburse Badger Catholic, an approved student group, for six activities that the university decided were purely religious in nature. The money comes from an activity fee fund set aside for student groups.
     According to Chief Judge Frank Easterbrook, the university "is willing to use student activity fees for what it calls dialog, discussion, or debate from a religious perspective, but not for anything that it labels worship, proselytizing, or religious instruction."
     The university said on appeal that funding of a religious activity is a form of government speech in violation of the Establishment Clause. But Easterbrook said that logic doesn't apply because the speech in question is that of students rather than that of the school.
     "There can be no doubt... that the university's activity-fee fund must cover Badger Catholic's six contested programs, if similar programs that espouse a secular perspective are reimbursed."
      Conversely, "the university is free to decline funding for all summer retreats; if it does not pay for training workshops over the summer for members of [another student group,] it need not pay for Badger Catholic's retreats either," Easterbrook wrote.
     The 7th Circuit dismissed Badger Catholic's request for an injunction and money damages. Easterbrook explained, "The district judge was not looking for an opportunity to take over management of the university's activity-fee program. If the entry of a regulatory injunction can be avoided by a simpler declaratory judgment, everyone comes out ahead."
     Judge Ann Claire Williams dissented, explaining her belief that the university had created a limited forum through the activity-fee funding, the content of which it can constitutionally govern to exclude "purely religious practice."
     Williams took issue with the majority's opinion that the "worship, proselytizing, or religious instruction" activities offered by Badger Catholic cannot be easily distinguished from the "dialog, discussion, or debate from a religious perspective" allowed by the university.
     "If religion, and the practice of one's religion, can be described as merely 'dialog or debate from a religious perspective,' what work does the Free Exercise clause of the First Amendment do?" she wrote. "The Free Speech clause... would sufficiently protect the right of people to have 'dialog, discussion or debate from a religious perspective.' That cannot be right..."
     The University of Wisconsin at Madison distributes about $2.5 million each year for student services, which includes counseling, tutoring and student groups. Badger Catholic receives nearly $200,000 from the fund annually, according to the ruling.