Never Can Say Goodbye: Justia Weekly Writers’ Picks May 16, 2014

Bain, et al. v. MJJ Productions, Inc., et al., US DC Cir. (05/13/14)
Civil Procedure

gavelRaymone Bain and her firm filed suit against Michael Jackson and his production company, MJJ Productions, Inc., claiming to be owed substantial sums for various services rendered. Defendants moved to dismiss, relying principally on a December 2007 release agreement where Bain broadly relinquished any claims against Jackson and his business entities. The district court granted summary judgment in favor of MJJ, holding that the release agreement precluded Bain’s claims. Bain moved for relief from judgment under Rule 60(b)(2) five months later. The “newly discovered evidence” cited by Bain was an April 2008 letter from Jackson to Bain, in which Jackson stated that he had no awareness of, and had never signed, the release agreement on which the district court had grounded its grant of summary judgment. The district court held that a movant’s awareness of evidence automatically precludes relief under Rule 60(b)(2), regardless of the evidence’s availability. The court found that to be an unduly constricted understanding of “newly discovered evidence” for purposes of Rule 60(b)(2). The court concluded, however, that the district court committed no abuse of discretion by looking beyond Bain’s efforts in searching her own files and considering whether she mentioned the letter to the court or sought its assistance in locating the evidence. Because Bain failed to exercise reasonable diligence in seeking out the letter, the court affirmed the judgment of the district court.

Read More: Michael Jackson’s Former Publicist Can’t Revive $44 Million Lawsuit

Bickley v. Dish Network, US 6th Cir. (5/13/14)
Banking, Communications Law, Consumer Law

American Satellite, a third party retailer of Dish Network satellite television services, received a call from a potential customer. A woman, who identified herself as “Dickley,” provided what she claimed to be her social security number. In actuality, the number belonged to a man named Bickley. Dickley was an identity thief. The agent entered Dickley’s name and social security number into an interface that connects to credit reporting agencies. Unable to verify the information, American Satellite informed Dickley that her attempt to open an account was declined. Bickley later received a credit report indicating that Dish had made an inquiry on his name. Dish informed him that someone had attempted to open an account in his name, providing a recording of the conversation between the agent and the identity thief. A year later, despite knowing that the inquiry had prevented the theft of his identity, Bickley filed suit under the Fair Credit Reporting Act, 15 U.S.C. 1681b, alleging request and use of his credit report without a “permissible purpose” and sought emotional distress damages. The district court entered summary judgment for Dish, including a counterclaim for abuse of process. The Sixth Circuit affirmed, referring to the conspicuous underdevelopment of key factual detail in Bickley’s complaint and in briefs as “bordering on deceitful” and to the adage that no good deed goes unpunished.

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EME Homer and the Problem with the U.S. Supreme Court’s Electronic Publishing

EraserBy now, you’ve all read that Justice Antonin Scalia made a series of mistakes in the dissenting opinion of EPA v. EME Homer City Generation, L.P. The Supreme Court issued a corrected version of the opinion on its website. For more on the story, read the coverage in the WSJ Law Blog, the Volokh Conspiracy, or SCOTUSBlog. They’ll give you the background – this post will discuss publishing implications, and why it’s problematic that the Court doesn’t notify the public when they make revisions to opinions.

Here’s how the Supreme Court’s electronic publishing process works. The first version of the opinion, called the bench opinion, is released in XML format to a handful of publishers (the “Project Hermes” feed). Later that day, a PDF version – the “slip opinion” – is released on the Court’s website. The slip opinions may be further edited, and then the official opinions are published in the bound volumes as citable opinions.

The Supreme Court’s website issues the following disclaimer about the slip opinions found therein:

Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and–one year after the issuance of that print–by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.

The Court occasionally issues new versions of slip opinions, but they don’t always notify the public when they do so.  Professor Emeritus of Cornell Law School and legal information expert Peter Martin has written about this, noting that most changes are for minor typographical errors. However, there have been instances where a significant change was made:

Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

The changes made to Scalia’s dissent in EME Homer were arguably significant. They were also very public. As far as I can tell, it was Law Professor Richard Lazarus who first discovered the error. He blogged about it, it was picked up by national news, and that’s why we know that the change was made. The Supreme Court notified Professor Lazarus of the change, but there is no mention of it on their site. They simply swapped opinions. Continue reading

Let Us Pray: Justia Weekly Writers’ Picks – May 9, 2014

Town of Greece v. Galloway, United States Supreme Court (5/5/14)
Constitutional Law, Government & Administrative Law

PrayerSince 1999, Greece, New York has opened monthly town board meetings with a roll call, recitation of the Pledge of Allegiance, and a prayer by a local clergy member. While the prayer program is open to all creeds, nearly all local congregations are Christian. Citizens alleged violation of the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers and sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” The district court entered summary judgment upholding the prayer practice. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that the town endorsed Christianity.  A divided Supreme Court reversed, upholding the town’s practice. Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Most states have also had a practice of legislative prayer and there is historical precedent for opening local legislative meetings with prayer. Any test of such a practice must acknowledge that it was accepted by the Framers and has withstood the scrutiny of time and political change. The inquiry is whether the town of Greece’s practice fits within that tradition. To hold that invocations must be nonsectarian would force legislatures sponsoring prayers and courts deciding these cases to act as censors of religious speech, thus involving government in religious matters to a greater degree than under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. The First Amendment is not a “majority rule” and government may not seek to define permissible categories of religious speech. The relevant constraint derives from the prayer’s place at the opening of legislative sessions, where it is meant to lend gravity  and reflect values long part of the Nation’s heritage. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based only on the content of a particular prayer will not likely establish a constitutional violation. If the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers to achieve religious balance.

Read More: With the Supreme Court’s Help, Religion Creeps Toward the State

Lindsay v. Bowen, US 9th Cir. (05/06/14)
Constitutional Law, Election Law

After plaintiff, who was twenty-seven years old at the time, was excluded from the presidential primary ballot under California law, she filed suit under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Twentieth Amendment. The district court dismissed the case with prejudice. The court concluded that the case was not moot because it was “capable of repetition, yet evading review.” The court concluded that age requirements, like residency requirements and term limits, are neutral candidacy qualifications which the State had the right to impose; any burden on plaintiff’s speech and association rights were minimal; and the burden was justified by California’s asserted interest in protecting the integrity of the election process and avoiding voter confusion. The court rejected plaintiff’s Equal Protection claim; because including ineligible candidates on the ballot could easily cause voter confusion, treating ineligible candidates differently from eligible ones was rationally related to the state’s interest in maintaining the integrity of the election process; and the Secretary did not violate the Equal Protection Clause by excluding from the ballot candidates who are indisputably ineligible to serve, while listing those with a colorable claim of eligibility. Even if the Twentieth Amendment gave rise to a private right of action, nothing in the Twentieth Amendment states or implies that Congress has the exclusive authority to exclude a candidate with a known ineligibility from the presidential ballot. Accordingly, the court affirmed the judgment of the district court.

Read More: Appeals court says 27-year-old could not run for president on CA ballot

Santer v. Bd. of Educ. of E. Meadow Union Free Sch. Dist., New York Court of Appeals (5/6/14)
Civil Rights, Constitutional Law, Government & Administrative Law

Petitioners and other members of the East Meadow Teachers Association displayed picketing signs from their cars parked where parents were dropping their children off at Woodland Middle School. The Board of Education of the East Meadow Union Free School District (District) charged Petitioners with misconduct related to the demonstration, claiming that Petitioners created a safety risk by parking their cars so that students had to be dropped off in the middle of the street instead of at curbside. Petitioners were found guilty of misconduct. Petitioners appealed, arguing that the disciplinary proceedings against them violated their right to free speech. Supreme Court denied the petitions. The Appellate Division reversed after applying the two-part balancing test set forth in Pickering v. Board of Education of Township High School. The Court of Appeals reversed, holding (1) the picketing demonstration was a form of speech protected by the First Amendment; but (2) Petitioners’ interests in engaging in constitutionally protected speech in the particular manner they employed on the day in question were outweighed by the District’s interests in safeguarding students and maintaining effective operations at the middle school.

Read More: State high court: East Meadow teacher protest endangered school safety

Justia Serves as a Lambda Legal Gold Sponsor, Sends Representatives to San Francisco Soirée

Justia employees & supporters at Lambda Legal's San Francisco Soirée

Lambda Legal is the oldest and largest legal organization in the United States committed to achieving full civil equality for the lesbian, gay, bisexual, and transgender community, as well as those living with HIV. It is a nonprofit organization that aims to achieve positive change within these diverse communities through means such as impact litigation, education, and public policy advocacy.

On April 25, 2014, Lambda Legal held its annual San Francisco Soirée at City View at the Metreon in the heart of San Francisco. Justia had the honor of being a gold event sponsor this year and sent a contingent of employee representatives from our headquarters in Mountain View to be present at the event.

As a company that works with educational, public interest and other socially focused organizations to make legal materials and consumer resources free and easily accessible online, Justia’s sponsorship of the Lambda Legal San Francisco Soirée was a natural extension of a mission our company has been exemplifying since its inception. Many of our employees are lawyers or have an educational or professional background in law, as well as contribute to the various online public interest projects, legal aid, civil rights, and educational projects in which Justia is involved. Attending the Lambda Legal event as a sponsor offered us not only the opportunity to financially support an organization with a mission complementary to Justia’s but also to keep abreast of Lambda’s most recent advocacy work on behalf of LGBT individuals nationwide. Continue reading

Smoke Gets In Your Eyes: Justia Weekly Writers’ Picks – May 2, 2014

Envtl. Prot. Agency v. EME Homer City Generation, L. P., United States Supreme Court (4/29/14)
Environmental Law, Government & Administrative Law

smoke-plume-1428335-mThe Clean Air Act (CAA) requires national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, 42 U.S.C. 7408. Once EPA establishes NAAQS, it designates “nonattainment” areas; each state must submit a State Implementation Plan, (SIP), within three years of any new or revised NAAQS. From the date EPA determines that a SIP is inadequate, EPA has two years to promulgate a Federal Implementation Plan (FIP). SIPs must comply with a Good Neighbor Provision, and “contain adequate provisions … prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will … contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to” NAAQS. In response to flaws in its 2005 Clean Air Interstate Rule, identified by the D. C. Circuit, EPA promulgated the Cross-State Air Pollution Rule (Transport Rule), curbing nitrogen oxide and sulfur dioxide emissions in 27 upwind states to achieve downwind attainment of three NAAQS and providing that an upwind state contributed significantly to downwind nonattainment if its exported pollution produced at least one percent of a NAAQS in a downwind state and could be eliminated cost-effectively. EPA created an annual emissions “budget” for each upwind state and contemporaneously promulgated FIPs allocating each state’s budget among its pollution sources. The D.C. Circuit vacated the rule as exceeding EPA’s authority. The Supreme Court reversed. The CAA does not require that states be given another opportunity to file a SIP after EPA has quantified interstate pollution obligations. Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP within precise deadlines. That EPA had previously accorded upwind states a chance to allocate emission budgets among their sources does not show that it acted arbitrarily by refraining to do so in this instance. The Good Neighbor Provision does not dictate a method of apportionment, so EPA had authority to select from among reasonable options; nothing precludes the final calculation from relying on costs. By imposing uniform cost thresholds on regulated states, the rule is efficient and is stricter on states that have done less pollution control in the past and does not amount to “over-control.”

Read More: Justices Back Rule Limiting Coal Pollution

Highmark, Inc. v. Allcare, United States Supreme Court (4/29/14)
Patents

The Patent Act provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party,” 35 U.S.C. 285. The Federal Circuit has interpreted section 285 as authorizing fee awards only “when there has been some material inappropriate conduct,” or when it is both “brought in subjective bad faith” and “objectively baseless.” A health insurance company obtained a declaratory judgment that a patent was invalid and not infringed. The district court found the case “exceptional” and awarded attorney fees of $4,694,727.40, $209,626.56 in expenses, and $375,400.05 in expert fees. The court found a pattern of “vexatious” and “deceitful” conduct by the defendant in attempting to force other companies to purchase licenses, even after its own experts determined that its claims lacked merit. The Federal Circuit reviewed the determination de novo and reversed in part. A unanimous Supreme Court vacated. All aspects of a district court’s exceptional-case determination should be reviewed for abuse of discretion. That determination is based on statutory text that emphasizes that the district court is better positioned to make the “multifarious and novel” determination, which is not susceptible to “useful generalization” of the sort that de novo review provides, and is “likely to profit from the experience that an abuse-of discretion rule will permit to develop.” The word “exceptional” should be given its ordinary meaning: “one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated,” considering the totality of the circumstances.

Octane Fitness, LLC v. ICON Health & Fitness, Inc., United States Supreme Court (4/29/14)
Patents

The Patent Act authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases,” 35 U.S.C. 285. In Brooks Furniture, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith” as shown by clear and convincing evidence. ICON sued Octane for patent infringement. The district court granted summary judgment to Octane, but denied attorney’s fees under section 285. The Federal Circuit affirmed. The Supreme Court reversed, finding the Brooks Furniture framework “unduly rigid’  in light of the statutory grant of discretion to district courts. Section 285 imposes only one constraint on the award of attorney’s fees, limiting it to “exceptional” cases. Because the Patent Act does not define “exceptional,” the term should be given it ordinary meaning: “uncommon,” “rare,” or “not ordinary.” An “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both governing law and the facts) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. The Brooks Furniture standard was so demanding that it appeared to render section 285 superfluous of the courts’ inherent power to award fees in cases involving misconduct or bad faith. Section 285 imposes no specific evidentiary burden.

Read More About These Two Decisions: Watch Out Trolls: Supreme Court Expands Fee Shifting in Patent Cases

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Courthouse News Wins First Amendment Case for Access to Court Records

Ventura County CourthouseCourthouse News Service won a ruling in the Ninth Circuit recently for access to court filings. CNS went to federal court last year to challenge the Ventura County Superior Court policy of delaying the release of court opinions.  A U.S. district court judge dismissed the case, finding that it was not a First Amendment issue, but a claim that involved sensitive state information, and that the federal court should abstain. The Ninth Circuit overturned that ruling and remanded the case to the federal district court for a decision on the merits.

Courthouse News Service is a periodical that covers courthouses all over the United States. They send reporters into courts every day to review the filings and write about the newsworthy cases. Most courts in California allow reporters daily access to the filings, but Ventura County has a policy that delays reporter access until “official processing” is completed, at which point the cases are no longer breaking news.

The Ninth Circuit found a clear First Amendment interest in immediate reporter access to the opinions. In the opinion, Judge Wardlaw wrote, “CNS’s First Amendment right of access claim falls within the general rule against abstaining under Pullman in First Amendment cases. CNS’s right of access claim implicates the same fundamental First Amendment interests as a free expression claim, and it equally commands the respect and attention of the federal courts.” We have the featured the trial and appellate court filings on Justia Dockets. You can read the full opinion and summary on Justia, as well. Continue reading

Justia Weekly Writers’ Picks – April 25, 2014

1.23.12_Supreme_Court_Warrantless_GPS_TrackingLegal news coverage was dominated this week by the Supreme Court Shuette decision, which upheld Michigan’s affirmative action ban for college admissions. Read a summary below of the Court’s decision along with a few other interesting opinions picked out by our writers this week.

Schuette v. Coal. Defend Affirmative Action, Integration & Immigration Rights, Unites States Supreme Court (4/22/14)
Civil Rights, Constitutional Law, Education Law

After the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, but that its law school admission plan’s limited use did not, Michigan voters adopted a new section of the state constitution (Proposal 2), prohibiting use of race-based preferences in the admissions process for state universities. The district court upheld Proposal 2, but the Sixth Circuit reversed, concluding that it violated Supreme Court precedent. The Supreme Court reversed. Justice Kennedy, with Chief Justice Roberts and Justice Alito, reasoned that the principle that consideration of race in admissions is permissible when certain conditions are met was not challenged; the issue was whether, and how, state voters may choose to prohibit consideration of such racial preferences. The decision by Michigan voters reflects an ongoing national dialogue; there was no infliction of a specific injury of the type at issue in cases cited by the Sixth Circuit. Individual liberty has constitutional protection, but the Constitution also embraces the right of citizens to act through a lawful electoral process, as Michigan voters did. Justices Scalia and Thomas stated that the question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. Stating that it did not, the Justices stated that the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact “has been squarely and soundly rejected.” Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but reasoned that the amendment only applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body; the Constitution permits, but does not require, the use of that kind of race-conscious program. The ballot box, not the courts, is the instrument for resolving debates about such programs. This case does not involve a diminution of the minority’s ability to participate in the political process.

Read More: The Supreme Court Again Fractures Over Race Continue reading

All Creatures Great & Small – Justia Weekly Writers’ Picks April 18, 2014

State v. DeMarco, Connecticut Supreme Court (4/22/14)
Civil Rights, Constitutional Law, Criminal Law

Upon following up on complaints from Defendant’s neighbor relating to Defendant’s keeping of animals in his residence, a police officer concluded that a “welfare check” was necessary and made a warrantless entry into Defendant’s home. Defendant subsequently entered a plea of nolo contendere to two counts of cruelty to animals. Defendant appealed the trial court’s denial of his motion to suppress on the ground that the warrantless entry was justified under the emergency exception to the warrant requirement. The appellate court reversed, concluding that the evidence did not permit a finding that the police reasonably believed that a warrantless entry was necessary to help a person inside the dwelling who was in immediate need of assistance. The Supreme Court reversed, holding that the trial court properly concluded that, under the totality of the circumstances present in this case, a police officer reasonably would have believed that an emergency existed inside Defendant’s home.

Read more: Court Backs Cops In Fourth Amendment Cases

Commonwealth v. Duncan, Massachusetts Supreme Judicial Court (4/11/14)
Civil Rights, Constitutional Law, Criminal Law

After receiving a telephone call from Defendant’s neighbor, police entered Defendant’s front yard without a warrant and seized three dogs, two of which appeared to be dead, that had been left outside in severely inclement winter weather. Defendant was subsequently charged with three counts of animal cruelty. Defendant filed a motion to suppress the evidence obtained as a result of the warrantless search. The superior court granted the motion but reported the question of law to the Supreme Judicial Court of whether the ‘pure emergency’ exception to the warrant requirement extends to animals. The Court answered the question in the affirmative, holding that the emergency aid exception to the warrant requirement extends to police action undertaken to render emergency assistance to animals. Remanded.

Read More: Backers hail SJC’s animal rescue ruling

Nat’l Assoc. of Manufacturers, et al. v. SEC, et al., USDC (4/14/14)
Civil Rights, Constitutional Law, Government & Administrative Law, Securities Law

In response to the Congo war, Congress created Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. 78m(p), which requires the SEC to issue regulations requiring firms using “conflict minerals” to investigate and disclose the origin of those minerals. The Association challenged the SEC’s final rule implementing the Act, raising claims under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq.; the Securities Exchange Act, 15 U.S.C. 78a et seq.; and the First Amendment. The district court rejected all of the Association’s claims and granted summary judgment for the Commission and intervenor Amnesty International. The court concluded that the Commission did not act arbitrarily and capriciously by choosing not to include a de minimus exception for use of conflict materials; the Commission could use its delegated authority to fill in gaps where the statute was silent with respect to both a threshold for conducting due diligence and the obligations of uncertain issuers; the court rejected the Association’s argument that the Commission’s due diligence threshold was arbitrary and capricious; the Commission did not act arbitrarily and capriciously and its interpretation of sections 78m(p)(2) and 78m(p)(1)(A)(i) was reasonable because it reconciled these provisions in an expansive fashion, applying the final rule not only to issuers that manufacture their own products, but also to those that only contract to manufacture; and the court rejected the Association’s challenge to the final rule’s temporary phase-in period, which allowed issuers to describe certain products as “DRC conflict undeterminable.” The court also concluded that it did not see any problems with the Commission’s cost-side analysis. The Commission determined that Congress intended the rule to achieve “compelling social benefits,” but it was “unable to readily quantify” those benefits because it lacked data about the rule’s effects. The court determined that this benefit-side analysis was reasonable. The court held that section 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), and the Commission’s final rule violated the First Amendment to the extent the statute and rule required regulated entities to report to the Commission and to state on their website that any of their products have “not been found to be ‘DRC conflict free.’” The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. By compelling an issuer to confess blood on its hands, the statute interferes with the exercise of the freedom of speech under the First Amendment. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

Read More: SEC conflict mineral rule violates freedom of speech, U.S. court says

American Tradition Inst. v. Rector & Visitors of Univ. of Va., Virginia Supreme Court (4/17/14)
Civil Rights, Constitutional Law

The American Tradition Institute and Robert Marshall (collectively, “ATI”) sent a request to the University of Virginia (“UVA”), seeking all documents that Dr. Michael Mann, a climate scientist and former professor, had produced and/or received while working for UVA. When ATI failed to receive the documents, it filed a petition for mandamus and injunctive relief in the trial court. The trial court conducted an in camera review of some of the documents UVA designated as exempt from disclosure, and subsequently entered an order finding UVA carried its burden of proof that the records withheld under the Virginia Freedom of Information Act met each of the requirements for exclusion. The Supreme Court affirmed, holding (1) the circuit court did not err by denying the request for disclosure of the documents at issue; and (2) the trial court did not err in allowing UVA to demand a reasonable fee for the cost of reviewing the documents sought under the statutory exclusions.

Read more: Climate scientist’s emails are shielded from disclosure, Virginia Supreme Court says

Jackpot!! Justia Weekly Writers’ Picks – April 4, 2014

McCutcheon v. Fed. Election Comm’n, United States Supreme Court (4/2/14) Civil Rights, Communications Law, Constitutional Law, Election Law

JackpotThe Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002, impose base limits, restricting how much money a donor may contribute to a particular candidate or committee, and aggregate limits, restricting how much money a donor may contribute in total to all candidates or committees, 2 U.S.C. 441a. In the 2011–2012 election cycle, McCutcheon contributed to 16 federal candidates, complying with all base limits. He alleges that the aggregate limits prevented him from contributing to additional candidates and political committees and that he wishes to make similar contributions in the future. McCutcheon and the Republican National Committee challenged the aggregate limits under the First Amendment. The district court dismissed. The Supreme Court reversed, with five justices concluding that those limits are invalid. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis depends on the fit between stated governmental objectives and the means selected to achieve the objectives. The aggregate limits fail even under the “closely drawn” test. Contributing to a candidate is an exercise of the right to participate in the electoral process through political expression and political association. A restriction on how many candidates and committees an individual may support is not a “modest restraint.” To require a person to contribute at lower levels because he wants to support more candidates or causes penalizes that individual for “robustly exercis[ing]” his First Amendment rights. The proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. The justices noted the line between quid pro quo corruption and general influence and that the Court must “err on the side of protecting political speech.” Given regulations already in effect, fear that an individual might make massive unearmarked contributions to entities likely to support particular candidate is speculative. Experience suggests that most contributions are retained and spent by their recipients; the government provided no reason to believe that candidates or committees would dramatically shift their priorities if aggregate limits were lifted. Multiple alternatives could serve the interest in preventing circumvention without “unnecessary abridgment” of First Amendment rights, such as targeted restrictions on transfers among candidates and committees, tighter earmarking rules, and disclosure.

Read More: Supreme Court Strikes Down Limits on Campaign Contributions

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Tommy Flanagan for the Defense, Your Honor – Justia’s Weekly Writers’ Picks 3/28/14

United States v. Bergman, US 10th Cir. (3/28/14)
Constitutional Law, Criminal Law

DishonestyDefendant-appellant Gwen Bergman was arrested when the hit-man she thought she hired to kill her husband was in fact an undercover police officer. After trial, it emerged that defendant’s lawyer was not a lawyer-in-fact, but a con man. Defendant applied for habeas relief on the ground that she received ineffective assistance of counsel. The district court agreed with her: the court vacated her conviction, and discharged her from supervised release (she had finished her prison term). Assuming the court’s decision to vacate the conviction it won at defendant’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. The district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed the district court’s decision to the Tenth Circuit. The government’s appeal raised the question of whether defendant could be exposed to a new trial and lawful conviction despite having successfully petitioned for habeas relief and served her jail sentence. Rather than contend categorically that only double jeopardy problems may preclude retrial, the government suggested that the remedy the district court selected was too attenuated from the right it found violated: defendant’s Sixth Amendment right to effective assistance of counsel. “[T]he presumptively appropriate remedy for a trial with an ineffective lawyer is a new trial with an effective one. . . . the district court failed to identify any reason why that presumption is inapplicable here; and in these circumstances refusing a new trial amounts to an abuse of discretion.”

Read More: Things To Do In Denver When You’re Dead: Court Considers Appeal Of Woman Represented By Fake Attorney

Jackson v. City & Ctny. of San Francisco, US 9th Cir. (3/25/14)
Civil Rights, Constitutional Law, Government & Administrative Law

Plaintiff appealed the district court’s order denying her motion for preliminary injunction of San Francisco Police Code sections 4512 and 613.10(g) on the ground that both infringed upon her Second Amendment rights. The court concluded that section 4512, which requires handguns to be stored in a locked container when not carried on the person, burdens the rights protected by the Second Amendment because storage regulations such as section 4512 are not part of a long historical “tradition of proscription;” section 4512 is not a substantial burden on the Second Amendment; and, applying intermediate scrutiny, the court concluded that section 4512 is substantially related to the important government interest of reducing firearm-related deaths and injuries. The court also concluded that section 613.10(g), which prohibits the sale of hollow-point ammunition within San Francisco, regulates conduct within the scope of the Second Amendment because restrictions on ammunition may burden the core Second Amendment right to self-defense and the record contained no persuasive historical evidence suggesting otherwise. Determining that plaintiff had standing to challenge section 613.10(g), the court concluded that section 613.10(g) is a reasonable fit to achieve its goal of reducing the legality of ammunition, and section 613.10(g) thus satisfies intermediate scrutiny. Accordingly, the court concluded that plaintiff would not succeed on the merits of her claims and affirmed the district court’s denial of plaintiff’s motion for preliminary injunction.

Read More: Appeals Court Upholds Mandatory Trigger-Lock, Ban on Hollow Points

Marshall v. Safeway, Inc., Maryland Court of Appeals (3/26/14)
Class Action, Labor & Employment Law

Plaintiff was an hourly employee of Safeway, Inc. In 2010, in response to two writs of garnishment issued by the district court, Safeway deducted an excess of $29.64 from Plaintiff’s wages. Plaintiff subsequently filed a lawsuit against Safeway on behalf of herself and all other persons similarly situated, arguing that Safeway’s garnishment practice resulted in wrongfully excessive deductions. Ten days after the class action suit was filed, Safeway changed its payroll garnishment system to conform with the correct garnishment exemptions standards and tendered to Plaintiff the amounts that would have been paid to her had those standards been applied at the time. The circuit declined to certify the class and entered judgment in favor of Safeway. The court of special appeals affirmed. The Court of Appeals affirmed, holding (1) employees have a right of direct private action against their employer under Md. Code Ann. Lab. & Empl. 3-507.2 for deducting from the employee’s wage more than is lawfully allowed; and (2) the circuit court did not abuse its discretion under the circumstances of this case in denying class certification and in entering judgment for Safeway.