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09 June 2014

Law in Plain English: Executive Benefits Insurance Agency v. Arkison

Argument: Jan 14 2013 (Aud.)

Discussion: Nicholas Paleveda and his wife, Marjorie Ewing, operated Aegis Retirement Income Services, Inc. ("ARIS") and the Bellingham Insurance Agency, Inc. ("BIA"). ARIS designed and administered defined-benefit pension plans, and BIA sold insurance and annuity products that funded those plans. BIA became insolvent, and Paleveda used BIA funds to incorporate the Executive Benefits Insurance Agency, Inc. ("EBIA"). In the meantime, BIA filed a voluntary Chapter 7 bankruptcy petition. The Trustee, Peter Arkison, filed a complaint against EBIA and ARIS to recover the commissions deposited into the EBIA/ARIS account, which the Trustee alleged to be property of the estate. The complaint alleged fraudulent transfer claims and a claim that EBIA was a successor corporation of BIA and therefore liable for its debts. The bankruptcy court granted summary judgment in favor of the Trustee, concluding that the deposits into the EBIA/ARIS account were fraudulent conveyances of BIA assets and that EBIA was a "mere successor" of BIA. The bankruptcy court entered a final judgment for $373,291.28. EBIA appealed to the federal district court, which affirmed the judgment. EBIA appealed again, and now for the first time claimed that the bankruptcy judge was constitutionally proscribed from entering final judgment on the Trustee's claims. The Ninth Circuit concluded Article III bars bankruptcy courts from entering final judgments in actions brought by a noncreditor absent the parties' consent, but that EBIA consented to the bankruptcy court's jurisdiction. As a result, that court's entry of summarj' judgment in favor of the Trustee was acceptable.

Issue: The questions before the Court are (1) whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether "implied consent" based on a litigant’s conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III; and (2) whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. 157(b).

Holding: In a unanimous decision, the Supreme Court ruled that under Stern v. Marshall, a bankruptcy court may not enter final judgment but may issue findings of fact and conclusions of law to be reviewed de novo by a district court.

27 May 2014

Law in Plain English: Michigan v. Bay Mills Indian Community

Argument: Dec 2 2013 (Aud.)

"Tendentious, junk-drawer arguments like this one are best left out of a brief. They waste opposing counsel's time and ours. We reject the argument here." State v. Bay Mills Indian Community, 695 F.3d 406, 416 (6th Cir. 2012)

Bay Mills Casino in Vanderbilt, MI.
Image from 500Nations.com.

Discussion: The Bay Mills Indian Community entered a Tribal-State compact with the State of Michigan, pursuant to the Indian Gaming Regulatory Act (IGRA), which permitted the tribe to conduct gaming activities on Indian lands. Bay Mills then purchased 40 acres of land in Vanderbilt, Michigan (more than 100 miles from the tribe's reservation) to construct a small casino. The State of Michigan and the Little Traverse Bay Bands of Odawa Indians ("Little Traverse") brought suit to prevent Bay Mills from operating their casino. Little Traverse sued Bay Mills on the theory that its Vanderbilt casino (total slot machines: 84) would divert millions of dollars of revenue from Little Traverse's vastly larger casino in Petoskey, Michigan — a high-end community located on the shores of Lake Michigan. The District Court entered a preliminary injunction ordering Bay Mills to stop gaming at the Vanderbilt casino. The Sixth Circuit vacated the injunction, holding that the District Court lacked jurisdiction over some of the plaintiffs' claims, and that Bay Mills's sovereign immunity bars the others. As a result, they vacated the injunction.

Issue: The questions before the Court are (1) whether a federal court has jurisdiction to enjoin activity that violates the IGRA, but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

Holding: In a 5-4 decision, the Supreme Court ruled that Michigan's suit is barred by tribal sovereign immunity.

04 May 2014

Law in Plain English: Environmental Protection Agency v. EME Homer City Generation; American Lung Association v. EME Homer City Generation

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Environmental Protection Agency v. EME Homer City Generation; consolidated with American Lung Association v. EME Homer City Generation

Argument: Dec 10 2013 (Aud.)

Discussion: Under the Clean Air Act (CAA), the Federal Government sets air quality standards, but States retain the primary responsibility for choosing how to attain those standards within their borders. The CAA contains a "good neighbor" provision which requires upwind States to bear responsibility for their fair share of pollution caused in down-wind States. To implement the statutory good neighbor requirement, the Environmental Protection Agency (EPA) promulgated the Transport Rule (or Cross-State Air Pollution Rule, CSAPR), which defines emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems. An array of power companies, coal companies, labor unions, trade associations, States, and local governments petitioned for review of EPA's Transport Rule. The D.C. Circuit ruled that States, not the Federal Government, are the primary implementers after EPA has set the upwind States' good neighbor obligations. As a result, the court found that the EPA had exceeded its statutory authority and vacated the rule. In appealing the ruling of the D.C. Circuit, the EPA argued both that the court exceeded its jurisdiction and erred on the merits.

Issue: The questions before the Court are (1) whether the Court of Appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.

Holding: In a 6-2 decision, the Supreme Court reversed the decision of the D.C. Circuit and ruled that the CAA does not command that States by given a second opportunity to file a State Implementation Plan (SIP) after EPA has quantified the State's interstate pollution obligations. The EPA's cost-effective allocation of emission reductions among upwind States is a permissible, workable, and equitable interpretation of the Good Neighbor Provision.

05 March 2014

Law in Plain English: BG Group PLC v. Republic of Argentina

Argument: Dec 2 2013 (Aud.)

Background: A bilateral investment treaty between the United Kingdom of Great Britain and Northern Ireland, and Argentina provides that disputes between an investor and the host State will be resolved in the host State's courts. If no final court ruling is forthcoming within eighteen months or the dispute is unresolved after a court ruling, the treaty provides that the dispute may be sent to arbitration. BG Group, PLC, a British corporation and investor in Argentina gas companies, invoked the arbitration clause without first filing a claim in the Argentine courts. The arbitration panel nonetheless ruled it had jurisdiction, found Argentina had violated the treaty, and awarded BG Group damages. The DC Circuit reversed, finding that the question of arbitrability is an independent question of law for the court to decide; and as a result, that BG Group was required to file its lawsuit in Argentina's courts and wait eighteen months before filing for arbitration.

Issue: The question before the Court is whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisﬁed.

Holding: In a 7-2 decision, the Supreme Court ruled that a court of the United States, in reviewing an arbitration award made under the Treaty, should interpret and apply “threshold” provisions concerning arbitration using the framework developed for interpreting similar provisions in ordinary contracts. Under that framework, the local litigation requirement is a matter for arbitrators primarily to interpret and apply. Courts should review their interpretation with deference.

25 February 2014

Law in Plain English: Walden v. Fiore

Argument: Nov 4 2013 (Aud.)

Background: Fiore and Gipson gambled in Puerto Rico and won $97,000. They intended to travel to Las Vegas via Atlanta, but were stopped and questioned at the San Juan Airport. TSA agents eventually let them go, but told them they might be questioned later in the trip. In Atlanta, DEA Agent Walden approached and questioned them. A drug-detection dog alerted, and Walden seized the cash. Fiore and Gipson continued on to Las Vegas. The cash was later returned when the Assistant U.S. Attorney concluded that the government lacked probable cause. Fiore and Gipson sued Walden in Nevada under Bivens, alleging that Walden violated their Fourth Amendment rights when he seized their cash in Georgia. The District Court dismissed the complaint for lack of personal jurisdiction, but the Ninth Circuit reversed.

Issue: The questions before the Court are (1) whether due process permits a court (in this case, in Nevada) to exercise personal jurisdiction over a defendant (Walden) whose sole “contact” with the forum state is his knowledge that the plaintiff has connections to that state; and (2) whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue even if the defendant’s alleged acts and omissions all occurred in another district.

Holding: In a unanimous opinion, the Supreme Court ruled that the District Court lacked jurisdiction. For a State to exercise jurisdiction consistent with due process, a relationship among the defendant, the forum, and the litigation must arise out of contacts that the defendant himself creates with the forum. The plaintiff cannot be the only link between the defendant and the forum. As a result, the District Court could not hear Fiore and Gipson's claim.

15 January 2014

Law in Plain English: Ray Haluch Gravel Co. v. Central Pension Fund

Argument: Dec 9 2013 (Aud.)

Discussion: Ray Haluch Gravel Co. is a Massachusetts-based landscape supply company. Pursuant to a collective bargaining agreement (CBA), Haluch made contributions to Central Pension Fund on behalf of an employee. After an audit of Haluch's book, the Fund demanded additional remittances for previously unreported work allegedly covered by the CBA. Haluch objected, and the Fund sued Haluch seeking recovery of both unpaid remittances and attorneys' fees. After trial (June 17 order), the court awarded the Fund $26,897.41 for unpaid remittances. About a month later (July 25 order), it resolved the claim for attorneys' fees, awarding the plaintiffs $34,688.15. The Fund was dissatisfied with the outcome of the case and filed their notice of appeal within thirty days (August 15) following the district court's entry of judgment with respect to the claim for attorneys' fees. This was, however, more than thirty days after the district court had entered its previous and separate judgment as to the claims for unpaid remittances (pursuant to the Federal Rules of Appellate Procedure, a notice of appeal must be filed within 30 days after entry of the judgment or order appealed from). The First Circuit ruled that the attorneys' fees must be considered an element of the plaintiffs' contractual damages; and as a result, when the district court entered judgment only for the unpaid remittances and explicitly left open the claim for attorneys' fees, the damages award was incomplete and the judgment was not final (pursuant to 28 U.S.C. § 1291, the appeals courts can only hear appeals from final decisions). As a result, according to the First Circuit, the Fund's appeal was timely even though it was more than thirty days after the district court had entered its previous judgment.

Issue: In Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), the Supreme Court held that a district court’s decision on the merits that left unresolved a request for statutory attorney’s fees was a “final decision” under 28 U.S.C. § 1291. The question before the Court is whether a district court’s decision on the merits that leaves unresolved a request for contractual attorney’s fees is a “final decision” under 28 U.S.C. § 1291, provides that courts of appeals have jurisdiction of appeals from final decisions of the district courts.

Holding: In a unanimous decision, the Supreme Court ruled that the appeal of the June 17 order was untimely. The Court found that whether a claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal. As a result, the First Circuit's decision was reversed and Central Pension Fund's appeal cannot go forward.

14 January 2014

Law in Plain English: DaimlerChrysler AG v. Bauman

News Coverage:

Lawfare: Justice Department Urges Supreme Court to Reverse Ninth Circuit in Bauman v. DaimlerChrysler (Jul 12, 2013)

Argument: Oct 15 2013 (Aud.)

Background: A group of Argentinians sued DaimlerChrysler Aktiengesellschaft (DCAG) in federal court in California under the Alien Tort Statute (ATS) and the Torture Victims Protection Act of 1991 (TVPA). They alleged that that one of DCAG's subsidiaries, Mercedes-Benz Argentina (MBA), collaborated with Argentinian state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina's "Dirty War." The District Court dismissed the case for lack of jurisdiction, but the Ninth Circuit reversed, finding that DCAG was subject to personal jurisdiction in California through because of its (indirect) corporate subsidiary Mercedes-Benz USA (MBUSA is a subsidiary of DaimlerChrysler North America Holding Corporation, which itself is a subsidiary of DCAG).

Issue: The question before the Court is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state.

Holding: In a 9-0 decision, the Supreme Court ruled that Daimler is not amenable to suit in California for injuries allegedly caused by conduct of Mercedes-Benz Argentina that took place entirely outside the United States. As a result, the claims of the Argentinians fail because the Court does not have jurisdiction to hear the case.

28 September 2013

Law in Plain English: Blue v. PG County

Roguell Blue v. Prince George's County, Maryand, et al.

Docket No.	Opinion Below	Argument	Opinion	Vote	Author	Term
No. 87	CSA	Jun 5 2013 Vid.1 Vid.2	Sep 27 2013	4-3	McDonald	ST 2012

Issue - Public Safety - In applying the "supervisory employee" exemption to the handgun control law, should the requirement that the employee be "within the confines of the business establishment" be restricted to inside the building only, as the Court of Special Appeals ruled?

Plain English Summary: Subject to various exceptions, the Maryland handgun law prohibits a private individual from wearing, carrying, or transporting a handgun without a handgun permit. An exception under that law allows a supervisory employee to carry a handgun with the authorization of the owner of the business “within the confines of the business establishment” in which the employee works.

Roguell Blue, the head of security for a nightclub, was arrested by the Prince George’s County Police for carrying a handgun without a permit on the open parking lot of the nightclub. Mr. Blue brought suit against the County, contending at trial that his arrest was illegal because the parking lot should be considered to be “within the confines” of the nightclub.

The question before the Maryland Court of Appeals was: In applying the supervisory employee exemption to the handgun control law, should the requirement that the employee be "within the confines of the business establishment" be restricted to inside the building only, as CSA ruled?

Holding: In a 4-3 decision, the Maryland Court of Appeals ruled that the supervisory employee exception to the handgun law allows such an employee to carry a handgun, with the employer’s permission, but only within the enclosed premises of the business in which the employee works. The Court reasoned that “within the confines of the business establishment” appeared to mean only the interior space of a commercial enterprise, where one may find its furnishings and staff, enclosed by walls or similar bounds; and not an exterior parking lot. The exception was not intended to include an unenclosed parking lot adjacent to a nightclub. As a result, when Mr. Blue left the “confines” of the nightclub and took his handgun into the parking lot, he was no longer within the exception. Thus, the Court of Special Appeals' decision was affirmed and Mr. Blue's suit was dismissed.

26 July 2013

Structure of the Federal Courts

This is one in a series of posts designed to describe the structure, procedures, and legal issues of the federal courts (and specifically, the Supreme Court) in plain English. For similar posts, click here.

(The text, and the first image below, are from here).

The federal courts have a three-part structure, as explained in the following diagram:

http://www.catea.gatech.edu/grade/legal/structure.html

As the diagram shows, the structure of the federal courts is roughly pyramidal. At the top of the pyramid is the Supreme Court. The Supreme Court is the highest court in the federal system. The Supreme Court is often called "the highest court in the land" because it hears appeals from state courts as well as federal courts. The Supreme Court has nine justices and begins its term on the first Monday in October of each year.

The Supreme Court hears most cases on appeal. Litigants wishing to appeal their cases from a state supreme court or from a federal Court of Appeals must file for a "writ of certiorari" . If four of the nine Justices agree to issue a writ, the Court will hear the case. The Court also has limited "original jurisdiction" in some cases.

The Federal Courts of Appeal are the middle part of the pyramid. The Courts of Appeal are divided into twelve different regions, often known as "circuits". These courts are often known as "circuit courts". Eleven of the twelve circuit courts handle cases from different states -- for example, the Eleventh Circuit Court of Appeals in Atlanta handles cases from Alabama, Florida, and Georgia. The twelfth circuit court is the Court of Appeals for the District of Columbia, and is located in Washington. Additionally, there is also a United States Court of Appeals for the Federal Circuit, which hears certain specialized cases.

The Federal District Courts are the lowest part of the pyramid. There are 94 judicial districts across the country, including judicial districts in the District of Columbia, Puerto Rico, the Virgin Islands, the Northern Mariana Islands, and Guam.

http://www.uscourts.gov/uscourts/images/CircuitMap.pdf

09 July 2013

Law in Plain English: Coleman v. Soccer Association of Columbia

James K. Coleman v. Soccer Association of Columbia, et al.

Docket No.	Opinion Below	Argument	Opinion	Vote	Author	Term
No. 9	ECR	Sep 10 2012 Vid.	Jul 9 2013	5-2	Eldridge	ST 2012

Issue - Tort Law - Should this Court ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative negligence regime?

Plain English Summary: Coleman (a volunteer soccer coach) was retrieving a ball from a soccer goal when he jumped and grabbed the crossbar. The goal subsequently collapsed and injured him. The jury found that the Soccer Association of Columbia was negligent, but that Coleman was also negligent.

Maryland is one of only a few jurisdictions (the others being Alabama, the District of Columbia, North Carolina, and Virginia) that allows the defense of contributory negligence. When a plaintiff is found to have contributed to his own injuries, he cannot recover (even if his contribution was minimal). Because the jury found that Coleman was partially negligent in causing his own injuries, he could recover nothing.

Most states allow a defense of comparative negligence, which reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. In other words, if a plaintiff is found to be 30% responsible for an injury based upon a $100,000 claim, he would recover 70%, or $70,000.

The question before the Maryland Court of Appeals is whether the Court should ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative negligence regime.

Holding: In a 5-2 decision, the Maryland Court of Appeals ruled that the General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence. As a result, the Court declined to repudiate the doctrine of contributory negligence and replace it with comparative negligence.

News Coverage

The Daily Record (Jul 9 2013)
Baltimore Sun (Jul 9 2013)

Date	Proceedings and Orders
Apr 20 2012	Writ of Ceriorari granted.
Jun 22 2012	Electronic Case Record
Jul 11 2012	Brief amici curaie of Local Government Insurance Trust, et al. filed.
	Brief amici curaie of American Tort Reform Association, et al. filed.
	Brief amici curaie of Maryland Chamber of Commerce, et al. filed.
Jul 9 2013	Decision.

26 June 2013

Supreme Court final week summary (end of term update)

Here are case summaries from today's three final opinions of the Supreme Court's term:

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question is a threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere. Here I predicted that Chief Justice Roberts would write the majority opinion.

Result: In a 5-4 decision written by Chief Justice Roberts, the Supreme Court ruled that Hollingsworth did not have standing to appeal. As a result, the Ninth Circuit's decision was reversed and remanded. The practical impact of this decision is that same sex marriage will be permitted in California, because the petitioners do not have standing to defend the law. This is a narrow ruling that will not apply outside of California.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning. Here I predicted that Justice Kennedy would write the majority opinion.

Result: In a 5-4 decision written by Justice Kennedy, the Supreme Court ruled that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. The practical impact of this decision is that the federal government cannot deny benefits to same-sex couples.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision. Here I predicted that Justice Scalia would write the majority opinion.

Result: In a 9-0 decision written by Justice Scalia, the Supreme Court ruled that attempting to compel a person to recommend that his employer approve an investment does not constitute the obtaining of property from another under the Hobbs Act. As a result, Sekhar's convicted was reversed.

Law in Plain English: United States v. Windsor

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My preview of the Windsor case is here.

United States v. Windsor

Windsor married her spouse in Canada, but New York (where she lived) did not recognize same sex marriage. After her spouse died, she filed suit, claiming that she was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act (DOMA) defines marriage as being between a man and a woman. Both the District Court and the Second Circuit decided in Windsor's favor, finding DOMA unconstitutional. Three months after Windsor's suit, the federal government also decided to stop enforcing DOMA, believing (as the courts in this case did) that DOMA was unconstitutional. The House of Representative's Bipartisan Legal Advisory Group (BLAG) moved to intervene on behalf of the United States. The results below, and this decision by the federal government, raised the questions before the Court: First, whether the federal government's decision not to defend DOMA took away jurisdiction from the Supreme Court to hear the case (BLAG argues that because the Second Circuit's decision in favor of Windsor was in line with the government's new position not to defend DOMA, the government prevailed and cannot appeal; the government argues otherwise); second, whether BLAG had standing to defend DOMA (because, arguably, their interest in seeing the law enforced does not rise to the level of a specific injury); and third, whether DOMA itself was unconstitutional by violating the Fifth Amendment's guarantee of equal protection. In a 5-4 decision, the Supreme Court ruled that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. The practical impact of this decision is that the federal government cannot deny benefits to same-sex couples.

25 June 2013

Supreme Court final week preview and predictions (June 25 update)

There are 3 remaining cases in the Supreme Court's current term. The last opinions are expected to be handed down on Wednesday morning. Here are the important questions in each case:

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision.

Supreme Court final week summary (June 25 update)

Here are summaries from today's three opinions. The Supreme Court will be back tomorrow morning for the last opinion announcements (stay tuned for my preview later today). Click on the name of the case for a link to my "Plain English" page for that case.

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Result: In a 5-4 decision, Chief Justice Roberts wrote for the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Prediction: A narrow majority of the Court will rule that denial of the development permit was not a taking.

Result: In a 5-4 decision, the Supreme Court ruled that the government’s demand for property from a land-use permit applicant must satisfy the Nollan / Dolan requirements even when it denies the permit (those cases held that the government may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use.As a result, the Court reversed and remanded the case.The practical impact of this decision bolsters the rights of property owners to fight unreasonable demands held hostage by building permits.

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

Prediction: Personally, I've love to see the Court reverse the South Carolina Supreme Court's ruling, but I am pessimistic that this will happen. It seems more likely they will affirm and let the biological father keep the child.

Result: In a 5-4 decision, the Supreme Court reversed the judgment of the South Carolina Supreme Court and remanded for further proceedings. The Court ruled that the Indian Child Welfare Act does not bar termination of the biological father's paternal rights because it applied to a child who was removed--the ICWA’s primary goal is not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. In other words, the provisions were not designed to apply to the circumstances presented by this case. As a result, the order returning the baby to the biological father was thrown out.

Law in Plain English: Shelby County v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

See here for a previous discussion and more background on the constitutionality of the Voting Rights Act.

Shelby County v. Holder

In 2006, Congress reauthorized Section 5 the Voting Rights Act (VRA), which kept in place a pre-existing coverage formula in Section 4(b) which determined which jurisdictions are required see seek preclearance for changes to voting procedures. Shelby County, Alabama filed a lawsuit in the U.S. District Court for the District of Columbia, seeking a declaratory judgment that the Voting Rights Act (specifically, Sections 4(b) and 5) were unconstitutional. The District Court disagreed and granted summary judgment to the Attorney General. A divided Court of Appeals affirmed. The question before the Court was whether Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. In a 5-4 decision, the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

24 June 2013

Supreme Court final week preview and predictions (June 24 update)

There are 6 remaining cases in the Supreme Court's current term. Here are the important questions in each case:

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Prediction: The Court will reverse in a unanimous decision.

21 June 2013

Supreme Court final week preview and predictions

There are 11 remaining cases in the Supreme Court's current term. Here are the important questions in each case:

Fisher v. University of Texas at Austin: Does the University's use of race in admissions decisions as a means of affirmative action violate the Equal Protection Clause of the Fourteenth Amendment?

Prediction: The convention wisdom (which I see no reason to depart from) suggests that the Court will rule 5-3 (Justice Kagan is recused) that the affirmative action policy violates the Fourteenth Amendment. Opinion author is likely to be Justice Kennedy.

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning.

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Prediction: A narrow majority of the Court will rule that denial of the development permit was not a taking.

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

Prediction: Personally, I've love to see the Court reverse the South Carolina Supreme Court's ruling, but I am pessimistic that this will happen. It seems more likely they will affirm and let the biological father keep the child.

Mutual Pharmaceutical Co. v. Bartlett: Did the the First Circuit Court of Appeals err when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products?

Prediction: Justice Alito will write for a 5-4 majority and reverse the First Circuit.

United States v. Kebodeaux: Did the court of appeals err in conducting its analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender? and (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?

Prediction: The Court will reverse the Fifth Circuit, finding that Congress did not have the authority to require the defendant to register as a sex offender.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision.

University of Texas Southwestern Medical Center v. Nassar: Does the retaliation provision of Title VII of the Civil Rights Act of 1964 and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)?

Prediction: A 5-4 majority will reverse and find that the retaliation provision requires a plaintiff to prove but-for causation.

Vance v. Ball State University: Does another employee who was responsible for assigning work on a day-to-day basis, but wasn't otherwise responsible for hiring, firing, transferring, demoting, disciplining, or promoting decisions qualify as "supervisor" which would subject the University to harassment claims?

Prediction: A 7-2 majority will affirm the lower court's decision.

20 June 2013

Supreme Court end of term preview (June 20 update)

DECIDED (6/20):

Descamps v. United States: A state conviction for burglary where the statute is missing an element of the generic crime, may not be subject to the "modified categorical approach."

American Express Co. v. Italian Colors Restaurant: The Federal Arbitration Act (FAA) does not permit courts to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim.

Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.: The U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which contains a provision which requires that recipients of its funding make an explicit policy opposing prostitution and sex trafficking, violates the First Amendment because it compels the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.

DECIDED (6/17):

Salinas v. Texas: The Fifth Amendment’s Self-Incrimination Clause does not protect a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Maracich v. Spears: The "litigation exception" in the Driver’s Privacy Protection Act does apply to lawyers that obtained, disclosed, or used personal information solely to find clients to represent in a class action lawsuit.

Alleyne v. United States: The decision in Harris v. United States (in which the Court held that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury) is overruled.

Federal Trade Commission v. Actavis: Reverse payment settlement agreements are not presumptively unlawful, neither are the drug companies immune from antitrust attack. Such agreements should proceed by applying the “rule of reason" (The "test of legality is whether the restraint imposed is such as merely regulates, and perhaps thereby promotes, competition, or whether it is such as may suppress or even destroy competition.").

Arizona v. The Inter Tribal Council of Arizona, Inc.: Arizona’s evidence-of-citizenship requirement, as applied to Federal Form applicants, is preempted by the NVRA’s mandate that States “accept and use” the Federal Form. As a result, Arizona's evidence-of-citizenship requirement is invalid. Nonetheless, the Court laid out an alternate means by which Arizona (or any other state) could determine voting qualifications. The NVRA permits states to request the federal Election Assistance Commission to include state specific instructions on the Federal Form (in fact, some states have already done this).

REMAINING:

Fisher v. University of Texas at Austin: Does the University's use of race in admissions decisions as a means of affirmative action violate the Equal Protection Clause of the Fourteenth Amendment?

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

United States v. Kebodeaux: Did the court of appeals errd in conducting its analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender? and (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?

19 June 2013

"So you're saying there's a chance!"

The Supreme Court's jurisdiction is largely discretionary. This means that it gets to pick and choose which cases it accepts. Over the past ten years, an average of more than 8,000 petitions are filed; yet the Court only accepts about 80 cases per term (or, ~1%). Less likely are in forma pauperis (IFP) petitions, which comprise nearly 80% of all petitions. Yet only about 11 IFP cases are granted of the 80 cases per term , which means that the likelihood of an IFP petition being granted is less than two tenths of one percent. Many of these IFP petitioners are also pro se (advocating on one's own behalf before a court, rather than being represented by a lawyer).

With all that being said, you might be reminded of this scene:

Yes, Lloyd, there's a chance. But it's not a very good one.

But every once in a while, the Supreme Court gives you that chance. And it did just that on Monday as it granted certiorari in the case of Law v. Siegel. The question in the case is whether the Ninth Circuit erred in allowing the bankruptcy trustee to surcharge Law’s constitutionally protected homestead property.

Stephen Law beats the odds. He filed a pro se, in forma pauperis petition that was granted by the Court (by the time Law's reply brief was filed in November, he had counsel).

Lawyers, legal practitioners, and law students used to reading highly polished appellate briefs will not want to take any notes from Law's petition. The errors start on the cover page and keep coming, fast and furious. But this post isn't intended to criticize the petition. It is to highlight that the highly improbable does happen. And sometimes the Court reads past all the errors and says "yes."

I'll have more on this case as we approach oral argument sometime next fall.

17 June 2013

Supreme Court end of term preview (June 17 update)

DECIDED (6/17):

Salinas v. Texas: The Fifth Amendment’s Self-Incrimination Clause does not protect a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Maracich v. Spears: The "litigation exception" in the Driver’s Privacy Protection Act does apply to lawyers that obtained, disclosed, or used personal information solely to find clients to represent in a class action lawsuit.

Alleyne v. United States: The decision in Harris v. United States (in which the Court held that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury) is overruled.

Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.: Does the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which contains a provision which requires that recipients of its funding make an explicit policy opposing prostitution and sex trafficking, violate the First Amendment?

Descamps v. United States: Should a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the "modified categorical approach?"

American Express Co. v. Italian Colors Restaurant: Does the Federal Arbitration Act (FAA) permit courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim?