Month: June 2018
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Justice Kennedy Announces His Retirement
After 30 years as an Associate Justice of the U.S. Supreme Court, Justice Anthony M. Kennedy announced his retirement effective July 31, 2018. In a letter to President Trump, Kennedy wrote: “For a member of the legal profession it is the highest of honor to serve on this court. Please permit me by this letter to express my profound gratitude ... Read More
TAGGED: scotus, Justice Kennedy
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Court Rejects Overly Strict Standard Used By Special Master In State Dispute Over Water Rights
In an original proceeding brought by Florida against Georgia in a dispute over water apportionment from an interstate river basin, the Court referred the matter to a Special Master for evidentiary proceedings. Florida, as the downstream state, argued that Georgia was using more than its fair share of the water from the basin, thereby harming wildlife in Florida. Ultimately the ... Read More
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First Amendment Forbids Mandatory Union Fees From Public Sector Unions
Illinois permits public employees to unionize, and Mark Janus was a state employee whose unit was represented by a public-sector union that engaged in collective bargaining on behalf of its members. The union required that Janus pay a union fee, but he objected since he opposed many of the collective bargaining positions the union took. In the previous case of ... Read More
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Court Upholds President Trump’s Travel Ban
In 2017, President Trump issued a proclamation restricting entry of people from eight countries, with exemptions for lawful permanent residents and case-by-case waivers under certain circumstances. The stated basis of the travel ban was that the named countries failed to provide the U.S. with sufficient information about the entrants, creating a security threat, although challengers to the ban (except as ... Read More
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Court Strikes Down Abortion Notices Under First Amendment
A number of pro-life crisis pregnancy centers mounted a First Amendment challenge to a California law that required licensed medical providers to provide a notice to its patients of the availability of free or low-cost services, including abortions, and required each unlicensed pro-life medical provider to notify patients that it was not licensed. The centers requested a preliminary injunction, which ... Read More
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American Express’s “Antisteering” Provisions Survive Antitrust Scrutiny
Like other credit card companies, American Express (AMEX) permits cardholders to purchase things on credit. However, AMEX encourages cardholder spending by providing more benefits to its members, and that results in higher fees charged to merchants. Merchants, in response, sometimes encouraged customers to use other cards, called “steering.” AMEX in turn put antisteering provisions into its merchant contracts. The government ... Read More
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Narrow Majority Largely Upholds Texas Redistricting Plan Against Gerrymandering Challenge
Abbott v. Perez presented the third opportunity for the Court to address gerrymandering claims under the Voter Rights Act, this time examining plans approved by the Texas legislature in 2013 that were largely in accordance with interim plans created by a three-judge Texas court. The 2013 plans evolved from earlier 2011 plans that did not meet with any court’s ... Read More
TAGGED: scotus, Gerrymandering, Redistricting, Abbott v. Perez, Voter Rights Act
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Supreme Court Has Appellate Jurisdiction To Hear Appeals From The Court Of Appeals For The Armed Forces
There are a separate series of trial and appellate military courts that address criminal charges against service members, capped by the Court of Appeals for the Armed Forces (CAAF). After Keanu Ortiz was convicted of possession and distributing child pornography, he appealed to the Air Force Court of Criminal Appeals (CCA). Colonel Martin Mitchell was part of the panel of ... Read More
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Defendant Who Consents To Separate Trials Not Subject To Double Jeopardy
After Michael Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon, he opted for separate trials, doing burglary and grand larceny first, unlawful possession second. He was concerned that his prior convictions for burglary and larceny, which would help prove the unlawful possession charge, would prejudice the jury’s consideration of his current ... Read More
TAGGED: scotus, Separate Trials, Double Jeopardy, Currier v. Virginia
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Government Needs A Warrant To Obtain Cell-Site Records To Track Suspect’s Movements
When the FBI suspected that Timothy Carpenter was involved in several robberies, it identified his cell phone number and obtained cell-site information from his wireless carriers without a warrant, which could be used to track the movement of his phone, and thus Carpenter himself. Carpenter moved to suppress the information as violating the Fourth Amendment’s requirement for a warrant supported ... Read More
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Patent Act Permits Recovery Of Lost Profits From Foreign Patent Infringement
In WesternGeco LLC v. ION Geophysical Corp., WesternGeco sued ION for patent infringement under the Patent Act for creating an identical ocean floor surveying system that ION assembled overseas from parts made in America. A jury awarded WesternGeco damages and lost profits. ION moved to set aside the lost profits since it argued the Patent Act did not ... Read More
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Removal Notice Must Specify Time And Place Of Proceeding To Stop Ten-Year Period To Cancel Removal Proceedings
Once a nonpermanent resident has been in the U.S. for a ten-year continuous period, they can cancel removal proceedings under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That period is stayed if the resident receives a written notice to appear that specifies a time and place for the removal proceedings during the ten year period. A ... Read More
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Securities And Exchange Commission Administrative Law Judges Are “Officers Of The United States” Under Appointments Clause
The Constitution’s Appointments Clause sets forth certain requirements for appointing “Officers of the United States,” who are more than mere employees of the federal government. The Securities and Exchange Commission (SEC) utilizes Administrative Law Judges (ALJ) to adjudicate administrative proceedings involving violations of securities laws. Those ALJs are not appointed in accordance with the Appointments Clause. When Raymond Lucia was ... Read More
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Stock Options Are Not Money Remuneration Under The Railroad Retirement Tax Act Of 1937
To support the nation’s ailing railroad systems, Congress passed the Railroad Retirement Tax Act in 1937 to bolster railroad employee pensions based on their “compensation,” which was defined as “any form of money remuneration.” Previously, the exception was used to exclude traditional perks like food, lodging, and tickets, but railroads recently began offering stock options. The lower courts split ... Read More
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Court Permits States To Impose Sales Taxes On Online Retailers Under The Commerce Clause
In prior cases going back to 1992, the Court had ruled that the Commerce Clause precluded States from imposing sales taxes on sellers who did not maintain a physical presence in the State. But then the Internet exploded, and online retailers like Amazon regularly sell products in the various States while eluding sales taxes. In South Dakota v. Wayfair, ... Read More
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Nurses Qualify to Testify about Causation
In Frausto v. Yakima HMA, LLC, 393 P.3d 776 (Wash. 2017) the court held that an Advanced Registered Nurse Practitioner (ARNP) could qualify to provide causation testimony in a pressure ulcer case. The court based its holding, at least in part, on the Washington state statute empowering ARNPs to diagnose illnesses. The court noted that a majority of ... Read More
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Health Law Group Privileged to Serve Children’s National Medical Center
Recently Jackson & Campbell’s Health Law Practice Group successfully defended Children’s National Medical Center in a wrongful death lawsuit. Judge Anthony Epstein entered judgment for the hospital after Plaintiff rested his case at trial. Attorneys Crystal S. Deese and Diona Howard-Nicolas, along with the entire Health Law Practice Group, are honored to have served our client in ... Read More
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Court Upholds District Court Judge’s Explanation For A Sentencing Modification
A criminal drug offender was originally sentenced to 135 months’ imprisonment after the Sentencing Guidelines provided a range of 135 to 168 months. The U.S. Sentencing Commission thereafter revised the range for the same crime to 108 to 135 months. The defendant moved the district court to modify his sentence accordingly. The judge lowered the sentence to 114 months, not ... Read More
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Courts Of Appeals Are Obligated To Correct Plain Sentencing Guideline Errors Under Federal Rule Of Criminal Procedure 52(b)
Under Federal Rule of Criminal Procedure 52(b), a court of appeals “should exercise its discretion to correct” an error in the district court’s application of the Sentencing Guidelines if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” In Rosales-Mireles v. United States, after the defendant was sentenced under a miscalculation under the Sentencing Guidelines ... Read More
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Court Denies Injunctive Relief In Maryland Gerrymandering Case
In Benisek v. Lamone, several Republican voters filed suit in 2017 challenging Maryland’s 2011 redrawing of its Sixth District as being gerrymandered against their constitutional rights. Those voters moved for a preliminary injunction in the district court, to allow the creation of a new districting map. The district court denied that relief and stayed the proceedings pending the decision ... Read More
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Plaintiffs Lacked Standing To Bring Gerrymandering Claims
In Gill v. Whitford, twelve Democratic voters brought claims arguing that the redrawing of Wisconsin’s districts after the 2010 census was an unconstitutional gerrymandering that made it harder for Democratic candidates to get elected. Specifically, the redrawing allegedly “cracked” Democratic voters into other districts where they could not reap a majority, and “packed” Democratic voters into a few districts ... Read More
TAGGED: scotus, Standing, Gerrymandering, Gill v. Whitford
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Court Permits First Amendment Retaliation Claim Against Municipality Despite Probable Cause To Arrest
Fane Lozman was something of a political gadfly to the City of Riviera Beach’s city council, and had filed a lawsuit against it. During a closed meeting, one of the council members suggested that the council “intimidate” Mr. Lozman, which the council supported. At a subsequent public meeting, when Lozman sought to discuss the recent arrest of a former county ... Read More
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Minnesota Law Banning Political Insignias In A Polling Place Struck Down Under The First Amendment
Under Minnesota law, a “political badge, political button, or other political insignia may not be worn at or about the polling place” where voters head to vote in elections. Election judges working the polls have authority to determine whether a particular item violates the prohibition, and those who refuse to remove offending items go through an administrative process that may ... Read More
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Statements From Foreign Governments Entitled To Respectful Consideration Under Rule 44.1, But Not Conclusive
In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., American purchasers of Vitamin C accused the selling Chinese companies of fixing prices in violation of U.S. antitrust laws. The Chinese companies argued that Chinese law required them to fix the prices, and the Chinese government, through its Ministry of Commerce, filed a statement in support of that ... Read More
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Arthur D. Burger Moderates Panel Presentation on Client Misconduct at the American Bar Association’s Annual Conference
The June 13th edition of the ABA/BNA Manual on Professional Conduct includes a summary of the ABA’s annual Conference on Professional Ethics panel presentation on proper handling of client misconduct. Leading the discussion as moderator was Arthur D. Burger, chair of Jackson & Campbell’s Professional Responsibility Practice Group. Click here to read the summary ... Read More
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Arthur D. Burger Quoted By Bloomberg Law
Arthur D. Burger, Chair of the Professional Responsibility Practice Group, was asked by Bloomberg Law to comment on the case of Joffe v. King & Spalding LLP, in which a former associate of the law firm was fired after raising ethical concerns about a case. Burger was quoted for his comments regarding prudent risk management procedures that law firms ... Read More
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Contracts Clause Permits Retroactive Minnesota Law Changing Life Insurance Beneficiaries
In Sveen v. Melin, Mark Sveen purchased a life insurance policy naming his wife, Kaye Melin, as the primary beneficiary, and his two children from a prior marriage as contingent beneficiaries, in 1998. In 2002, Minnesota enacted a law under which a divorce automatically removed a spouse as a beneficiary from such a policy. Sveen and Melin divorced in ... Read More
TAGGED: Contracts Clause, Life Insurance, Sveen v. Melin
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Court Limits Tolling Of Statute Of Limitations In Class Actions To Future Filers
Under prior Court precedent, when a class action is filed but then fails to gain certification, the statute of limitations is tolled for those within the putative class, allowing them to intervene as individual plaintiffs in that action, or bring an individual suit. In China Agritech, Inc. v. Resh, instead of bringing a separate individual suit or intervening, the ... Read More
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Closely Divided Court Upholds Ohio Law Maintaining Voter Rolls
Under Ohio law, when a voter fails to vote for two years, the state sends the nonvoter a postage prepaid return card to verify his or her address. Voters who do not return the card and do not vote in any election for four more years are then presumed to have moved and are removed from the voting rolls. In ... Read More
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Court Dismisses As Moot Lawsuit Over Unlawful Immigrant’s Abortion
When a pregnant minor unlawful immigrant sought to get an abortion while in the custody of the Office of Refugee Resettlement, the Office’s policy prohibited her from getting an abortion without the Director’s permission. The minor moved for a temporary restraining order of the policy, which the district court granted. The minor then attended preabortion counseling as required under Texas ... Read More
TAGGED: scotus, Dismisses As Moot, Abortion, Azar v. Garza