Month: June 2019
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D.C. Court of Appeals Affirms Establishment of a Public Easement by Prescription Against a Tax Sale Purchaser Who Tried to Close Off an Alleyway
In Zere v. District of Columbia, the D.C. Court of Appeals restated the elements for a prescriptive easement in the District, with a particular focus on the element of adversity, by affirming a grant of summary judgment. Mr. Zere, an experienced tax sale purchaser, separately acquired five of six lots that formed a private alley. Mr. Zere then attempted to ... Read More
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SCOTUS Opinion: Police May Take Blood Test Of Unconscious Driver Without Warrant Under Exigent Circumstances Doctrine
After Gerald Mitchell was arrested for driving while intoxicated, his breath test came out three times over the legal limit. He then became unconscious. Wisconsin law presumed that an unconscious person consents to a blood test, so the police took him to a hospital where a blood test revealed his BAC well over the legal limit. During his prosecution, Mitchell ... Read More
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SCOTUS Opinion: Court Decides That Federal Courts Cannot Address Partisan Gerrymandering Claims
The case of Rucho v. Common Cause combined two different gerrymandering claims: one from North Carolina where the claim was that the redistricting plan hurt Democrats, one from Maryland which claimed that the plan hurt Republicans. In both cases, the district courts ruled that the plans violated the Constitution. The Court, in a 5-4 opinion by Chief Justice Roberts, ... Read More
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SCOTUS Opinion: Court Blocks The Citizenship Question From The 2020 Census Questionnaire For Now
The Constitution requires a census to be taken every 10 years, and Congress delegated that task to the Secretary of Commerce. In 2018, the Secretary announced that he would reinstate a citizenship question on the 2020 census questionnaire, a question that had been included in almost every census up through 2000. Opposition to the question claimed that the question would ... Read More
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SCOTUS Opinion: State Residency Requirement For Liquor Store Licenses Struck Down
Tennessee law required that to get a license to sell alcohol, the seller had to first be a Tennessee resident for two years. The state agency tasked with enforcing the law declined to do so after the state’s attorney general opined that the law violated the Commerce Clause of the Constitution. When two non-resident businesses applied for licenses, a ... Read More
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SCOTUS Opinion: Auer Deference To An Agency’s Interpretation Of Its Own Regulations Survives, Barely
In Kisor v. Wilke, the underlying case concerned a Vietnam War veteran’s quest for disability benefits. The Department of Veterans Affairs interpreted its internal rule to deny the veteran benefits going back to when he first applied. The Federal Circuit affirmed the determination using Auer deference, established by the Court in Auer v. Robbins, 519 U.S. 452 (1997), ... Read More
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SCOTUS Opinion: Court Strikes Supervised Release Statute That Permitted Additional Prison Time Without A Jury Determination
In United States v. Haymond, Andre Haymond was found guilty by a jury of possessing child pornography, a crime that permitted a prison term of zero to 10 years. After serving his term and while on supervised release, Haymond was found with what appeared to be images of child pornography on his devices. Under 18 U.S.C. sec. 3583(k), a ... Read More
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SCOTUS Opinion: Court Strikes Down Violent Felony Residual Clause As Vague
Under 18 U.S.C. sec. 924(c)(3)(B), a defendant may receive a longer prison sentence for using a firearm in connection with a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In prior cases, the Supreme Court struck down residual ... Read More
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SCOTUS Opinion: Court Clarifies What “Confidential” Information is not Subject to a Freedom of Information Act Request
In Food Marketing Institute v. Argus Leader Media, a newspaper filed a request under the Freedom of Information Act (FOIA) to the Department of Agriculture requesting information about retail stores who participate in the national food stamp program. The Department declined to provide store-level data on the basis that it was “confidential” and thus precluded from disclosure under ... Read More
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SCOTUS Opinion: Court Strikes Down Law Against Immoral or Scandalous Trademarks
The Lanham Act prohibits registration of any trademark that contains “immoral[] or scandalous matter.” In Iancu v. Brunetti, an applicant sought to trademark FUCT (pronounced F-U-C-T), but was denied by the Patent and Trademark Office. The applicant appealed, arguing that the Act’s restriction violated the First Amendment. The Federal Circuit struck down the restriction as unconstitutional. The Court, ... Read More
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SCOTUS Opinion: Seamen Are Not Entitled To Punitive Damages Under Claims Of Unseaworthiness
In Dutra Group v. Batterton, a sailor was injured when a hatch blew open. He sued the vessel’s owner claiming unseaworthiness, seeking compensatory and punitive damages. The owner moved to strike the punitive damages claim, which was denied by the district court and affirmed by the Ninth Circuit. The Court, in a 6-3 opinion by Justice Alito, reversed and ... Read More
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SCOTUS Opinion: Court Vacates Murder Conviction Under Batson Challenge
In Flowers v. Mississippi, Curtis Flowers, a black man, was tried six times for allegedly murdering four people in a small town furniture store. The first three times, he was sentenced to death but the convictions were overturned. The fourth and fifth trials ended in mistrials. Throughout those trials, the prosecution used their peremptory strikes to remove all black ... Read More
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SCOTUS Opinion: Under Due Process Clause, State Cannot Tax Foreign Trust Solely Because A Beneficiary Resides In the State
A family trust was created in New York state, with the trustee also located in New York, to distribute assets to the children of the trust creator under the trustee’s sole discretion. One of those children moved to North Carolina. The trustee then divided the trust into three separate trusts, one for each child, retaining full power and discretion over ... Read More
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SCOTUS Opinion: Government Must Prove Immigrant Had Knowledge Of Unlawful Residence For Gun Possession Conviction
Under 18 U.S.C. sec. 922(a)(2), it is illegal for an immigrant “illegally or unlawfully in the United States” to possess firearms and “knowingly violates” that prohibition. In Rehaif v. United States, an immigrant entered the country on a nonimmigration student visa, but was dismissed for poor grades, making his further residence unlawful. He then went to a firing ... Read More
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SCOTUS Opinion: Court Permits Fifth Amendment Takings Claim Without First Seeking Compensation Under State Law
In the prior case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Court ruled that before a property owner could bring a federal action against a state under the Takings Clause of the Fifth Amendment, the owner had to first seek just compensation under state law in state court ... Read More
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SCOTUS Opinion: Court Upholds Sex Offender Registration and Notification Act Against Delegation Challenge
The Sex Offender Registration and Notification Act required all convicted sex offenders to register with the government. For those offenders convicted of a sex offense before the Act was enacted, the Act authorized the Attorney General to “specify the applicability” of the Act’s registration requirements and prescribe rules therefore. The Attorney General issued a rule applying the Act’s requirements ... Read More
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SCOTUS Opinion: Court Treats Fabrication Of Evidence Claim As Malicious Prosecution For Statute Of Limitations Purposes
In McDonough v. Smith, a commissioner of a county board of elections in New York was indicted by the district attorney for forging absentee ballots. The district attorney used fabricated evidence to secure a grand jury indictment, and used fabricated testimony at trial. After a mistrial, the commissioner was ultimately acquitted on all charges. Just under three years later, ... Read More
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SCOTUS Opinion: Court Permits The Bladensburg Peace Cross To Remain Standing
The Bladensburg Peace Cross was erected in 1925 on public land as a tribute to the lives of 49 soldiers from the local area who died in World War I. Certain atheistic groups filed suit in federal court, arguing that the cross violated the First Amendment’s Establishment Clause. The district court dismissed the case under the tests set forth in ... Read More
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SCOTUS Opinion: Court Requires More Information Before Resolving “Junk Faxes” Case
The Telephone Consumer Protection Act prohibits “unsolicited advertisements.” The Federal Communications Commission issued an order in 2006 interpreting that term to “include any offer of a free good or service.” However, under the Hobbs Act, the federal courts of appeals have the exclusive jurisdiction to enjoin, set a side, suspend . . ., or to determine the validity ... Read More
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SCOTUS Opinion: Virginia’s House of Delegates Lacks Standing To Challenge Redistricting Order
After Virginia redrew its districts following the 2010 census, 11 of those districts were held to be unconstitutionally drawn as being racially gerrymandered. Virginia’s Attorney General, a Democrat, declined to appeal the ruling. However, the Virginia House of Delegates, controlled by the Republicans, chose to appeal that ruling directly to the Supreme Court, arguing that the districts were constitutional. Justice ... Read More
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SCOTUS Opinion: Court Retains Dual-Sovereignty Doctrine Exception To Double Jeopardy Rule
Under the Fifth Amendment, defendants may not be indicted for the same crime twice—otherwise known as double jeopardy. However, the Court had, since Heath v. Alabama, 474 U.S. 82 (1985), held that double jeopardy did not occur when the same offense was prosecuted by different sovereigns, thus creating the “dual-sovereignty doctrine.” In Gamble v. United States, Terance Gamble was ... Read More
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SCOTUS Opinion: Private Nonprofit Corporation Operating Public Access Channels Not A State Actor Subject To First Amendment
New York City designated Manhattan Neighborhood Network, a privately owned nonprofit corporation, to operate its public access channels on the cable system in Manhattan. Two filmmakers produced a film attacking the Network to be run on the public access channels. The Network aired the film, but then suspended the filmmakers from the Network’s services and facilities. The filmmakers sued, alleging ... Read More
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SCOTUS Opinion: Court Upholds Virginia Ban On Uranium Mining
Virginia law flatly bans uranium mining in the Commonwealth. In Virginia Uranium, Inc. v. Warren, a company sought to circumvent that state law by arguing that the federal Atomic Energy Act preempted Virginia’s law, and put the Nuclear Regulatory Commission in charge of uranium mining. The company lost before the district court and the Fourth Circuit. The Supreme ... Read More
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Bloomberg Law Quotes Arthur D. Burger’s Comments on Law Firm Risk Management Issues
This week's “Legal Ethics Highlights” from Bloomberg Law reported on the presentation titled, “Strengthen and Update Internal Risk Management,” which was part of the American Bar Association’s National Conference on Professional Responsibility in Vancouver, Canada. The panel, which included Arthur D. Burger, Chair of Jackson & Campbell, P.C.’s Professional Responsibility Practice Group, discussed various measures that law ... Read More
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SCOTUS Opinion: Court Broadens Definition Of Generic Burglary Under Armed Career Criminal Act
After Jamar Quarles pled guilty to being a felon in possession of a firearm, prosecutors sought to give him an enhanced sentence under the Armed Career Criminal Act because he had at least three prior “violent felony” convictions. The Act defines “burglary” as being a violent felony, meaning “unlawful or unprivileged entry into, or remaining in, a building or structure, ... Read More
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SCOTUS Opinion: The Government Is Not A “Person” That Can Institute A Patent Review Under America Invents Act
The Leahy-Smith America Invents Act contains provisions allowing a “person” other than a patent owner to use three types of administrative review to challenge the validity of a patent after it has been issued, with appeal rights to the Federal Circuit. In Return Mail, Inc. v. United States Postal Service, Return Mail obtained a patent for processing undeliverable ... Read More
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SCOTUS Opinion: Court Holds Outer Continental Shelf Lands Act Preempts State Employment Law
Brian Newton worked on a drilling platform off the California coast, where his employer paid him for time on duty but not for his time on standby, when he could not leave the platform. He filed a class action in California state court, arguing that state law required the employer pay for standby time. The employer removed the case to ... Read More
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SCOTUS Opinion: Court Sets “No Objectively Reasonable Basis” Standard For Violation Of Bankruptcy Discharge Orders
After Bradley Taggart was civilly sued for violating a business operating agreement, but before the case went to trial, he filed for Chapter 7 bankruptcy and received a discharge. After the discharge was granted, the civil suit recommenced and Taggart lost. The winners sought their attorneys’ fees incurred after Taggart’s petition was filed, which normally were discharged unless Taggart had ... Read More
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SCOTUS Opinion: Medicare Act Requires Notice And Comment Before Any Changes To “Medicare Fraction”
Under the Medicare Act, the enforcing agency is required to go through a public notice and comment period before changing any “substantive legal standard” affecting Medicare benefits. 42 U.S.C. sec. 1395hh(a)(2). Under Medicare Part A, the federal government paid hospitals who served low-income patients through a “Medicare fraction,” which was calculated by dividing the time spent by a hospital ... Read More
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SCOTUS Opinion: Title VII Claims Not Limited To Those Made To Equal Employment Opportunity Commission
In Fort Bend County, Texas v. Davis, Lois M. Davis filed a charge of sexual harassment and retaliation for reporting the harassment with the Equal Employment Opportunity Commission (EEOC). While the EEOC was investigating, the employer fired Davis when she went to a church function instead of work on Sunday. Davis handwrote “religion” on an intake questionnaire to ... Read More