All posts by Troy Moody

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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 result in a civil fine. The Minnesota Voters Alliance challenged the law on facial and as-applied grounds as violating the First Amendment. They lost at the district court and before the Eighth Circuit, and took their facial challenge to the Supreme Court. The court, in a 7-2 decision authored by Chief Justice Roberts, reversed, holding that the law facially violated the First Amendment. The Court first held that a polling place is a “nonpublic forum,” and Minnesota had an interest to keep such places free of distractions from the voting process. However, given that the law did not define what made a particular item “political,” it was too vague to withstand constitutional scrutiny. Justice Sotomayor, joined by Justice Breyer, dissented, arguing that the case should have been certified to the Minnesota Supreme Court for a determination as to what “political” meant before the Court weighed in. A link to the opinion in Minnesota Voters Alliance v. Mansky is here.

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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 position. The purchasers offered evidence to contradict those statements. The district court rejected the arguments of the Chinese companies, resulting in a $147 million jury verdict against them. On appeal, the Second Circuit vacated the award, holding that the statement from the Ministry should have been treated as conclusive on the issue. The Court, in a unanimous opinion by Justice Ginsburg, reversed, holding that while the statements of foreign governments are entitled to respectful consideration, they are not conclusive. Under Rule 44.1, there is “no single formula or rule [that] will fit all cases” in how courts must weigh a foreign government’s statement of its own law, and federal courts are not “bound to adopt the foreign government’s characterization nor required to ignore other relevant materials.”

| Arthur D. Burger

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.

| Arthur D. Burger

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 should employ to avoid such situations. Click here to read the full article.

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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 2007, and their divorce did not address the policy. When Sveen died in 2011, Melin and the children litigated over who was entitled to the policy funds. The district court awarded the funds to the children, but the Eighth Circuit held that Minnesota’s statute, applied retroactively, violated the Constitution’s Contracts Clause, which prohibits the States from passing any law “impairing the Obligation of Contracts.” The Court, in an 8-1 opinion by Justice Kagan, resolved the circuit split over the issue and reversed, holding that Minnesota’s law does not violate the Contracts Clause because it “does not substantially impair pre-existing contractual arrangements,” since it acts to preserve the policyholder’s wishes, does not disturb the policyholder’s expectations, and can be undone by the policyholder if desired. Justice Gorsuch filed a lone dissent, arguing that the choice of beneficiary was a, if not the, central term of any life insurance policy, and thus any State law changing that term would violate the Contracts Clause.

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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 new plaintiff sought to bring another class action after the statute of limitations period had expired, arguing that tolling was appropriate for the new class action under the Private Securities Litigation Reform Act of 1995. The district court dismissed the new class action as untimely, and the Ninth Circuit reversed, holding that prior precedent permitted the tolling. The Court, in a unanimous decision by Justice Ginsburg, reversed, holding that the denial of class certification did not toll the statute of limitations as to a future class action, as efficiency in class claims favors early assertion and resolution of such claims, and does not favor those who are late in filing. Justice Sotomayor filed a concurrence agreeing with the result only as to the Act in question, but leaving open whether class actions in other circumstances might allow tolling.

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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 Husted v. A. Philip Randolph Institute, Ohio’s law was challenged under the National Voter Registration Act, which forbids removal of a voter from the rolls solely for failing to vote, while allowing certain procedures, including the return cards, to identify voters who can be taken off the rolls because they no longer have the residency requirement (i.e. have moved). The district court upheld the law, but the Sixth Circuit reversed because the return card was sent because of a failure to vote, implicating the Act’s prohibition. The Court, in a 5-4 opinion by Justice Alito, reversed, holding that Ohio’s law followed the requirements of the Act “to the letter.” The majority further noted that the Act only precluded removal from the rolls based “solely” on failure to vote, and did not prohibit the sending of the return card on that basis, since the card in itself did not remove any voter from the rolls. Justice Thomas filed a concurrence, arguing that the dissent’s interpretation of the Act would unnecessarily raise constitutional concerns over State authority to determine voter qualifications. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, arguing that a voter’s failure to return a card verifying his or her address does not materially support the inference that the voter lacks residency to vote, and the Act should be read to prohibit a state from using a voter’s failure to vote to initiate the sending of that card. Justice Sotomayor filed a separate dissent to note that the Act was meant to protect minorities from being scrubbed from the rolls, and her view that Ohio’s law was the type of “purge system that the [Act] was designed to prevent.” A link to the opinion is here.

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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 law where she was sheltered. A panel of the D.C. Circuit vacated the district court’s order the next day. But four days later, the D.C. Circuit sitting en banc reversed that ruling and reinstituted the TRO. The Government intended to ask for an emergency rehearing of the en banc order with the Supreme Court, but did not file it immediately, thinking (apparently based on representations by the minor’s counsel) that the minor had to do preabortion counseling again before getting the abortion. Instead, the minor’s counsel was able to schedule the abortion procedure before dawn the next morning. The Court, in a per curiam opinion, dismissed the case as moot, and declined to find that the minor’s counsel engaged in material misrepresentations to thwart the Government’s efforts at review. A link to the opinion in Azar v. Garza is here.

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Criminal Defendants Sentenced Under Mandatory Minimums Not Entitled To Relief Under 18 U.S.C. sec. 3582(c)(2)

In Koons v. United States, after several criminal defendants pleaded guilty to drug conspiracy charges, the district court discovered that the mandatory minimum sentence provided under 21 U.S.C. sec. 841(b)(1) was higher than the sentencing range provided under the Sentencing Guidelines. The district court decided that the mandatory minimums trumped the Guidelines, and sentenced the defendants under that range, although the judge lowered the ultimate sentence after accounting for other mitigating factors. The Guidelines were later amended to lower the sentencing range for drug conspiracies, and the defendants moved to reduce their sentences under 18 U.S.C. sec. 3582(c)(2). The Court, in a unanimous opinion by Justice Alito, affirmed the lower courts and held that the defendants were not entitled to relief because their sentences were not based on the Guidelines, which is a prerequisite for relief under Section 3582(c)(2).

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Court Permits Bankruptcy Discharge Despite Oral Misrepresentation Over Ability To Pay Legal Bill

When R. Scott Appling fell behind in paying his legal bills, he orally told his attorneys that he would repay them with a tax refund he was expecting to get. When he got the (lower than expected) refund, he used it to pay other expenses instead, lying to his attorneys so they would continue with the representation. After the attorneys sued Appling and got judgment, he petitioned for a Chapter 7 discharge. In an adversary proceeding the attorneys argued that Appling’s debt should not be discharged under 11 U.S.C. sec. 523(a)(2)(A) because of his knowing misrepresentations. Appling argued that he was entitled to the discharge because his oral misrepresentations constituted “statement[s] respecting the debtor’s . . . financial condition” that had to be in writing for the exemption to apply under 11 U.S.C. sec. 523(a)(2)(B). The attorneys argued that the misrepresentations here were about a single asset, and not Appling’s overall financial condition, but the Eleventh Circuit ruled for Appling. The Court, in a unanimous decision by Justice Sotomayor, affirmed, holding that a debtor’s misrepresentation about even a single asset constituted a statement about his or her “financial condition” sufficient to require it to be in writing in order for it to exempt a debt from discharge. Justices Thomas, Alito, and Gorsuch did not join the portion of the decision analyzing congressional intent for these portions of the Bankruptcy Code. A link to the opinion in Lamar, Archer & Cofrin, LLP v. Appling is here.

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Court Resolves Confusion In Certain Plea Agreements, Holds They Are Subject To Sentencing Guidelines

In 2011, the Court had to decide whether a criminal defendant who entered into a plea deal under Federal Rule of Criminal Procedure 11(c)(1)(C) could petition to reduce his or her sentence under 18 U.S.C. sec. 3582(c)(2) (which permits a reduction upon a change in the Sentencing Guidelines) if the Sentencing Guidelines were later amended to lower the sentencing range for the crime the defendant was pleading guilty to. The result, Freeman v. United States, was fractured, with four justices and Justice Sotomayor disagreeing as to the conditions required to permit the reduction: the plurality held that such plea agreements were based on the Sentencing Guidelines, and so always eligible for reduction, while Sotomayor argued that plea agreements could sometimes be based on the Sentencing Guidelines, but sometimes not. The lower courts then disagreed as to which rationale should be applied. Now, in a 6-3 opinion by Justice Kennedy in Hughes v. United States, the Court resolved the confusion and sided with the Freeman plurality, holding that plea agreements should be assumed to be based on the Guidelines unless expressly stated otherwise, and thus those plea agreements are eligible for reduction under Section 3582(c)(2). Justice Sotomayor, in concurrence, expressed regret over the confusion her Freeman opinion caused, deciding that this result permitted more needed predictability in criminal sentencing. Chief Justice Roberts, joined by Justices Thomas and Alito, dissented, arguing that the majority’s rationale remained as unpersuasive as the plurality’s in Freeman.

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Court Sides With Baker Who Refused To Bake Custom Cake For Gay Wedding

When Jack Phillips refused, on religious grounds, to make a custom wedding cake for a gay couple, the couple filed a charge with the Colorado Civil Rights Commission alleging the refusal violated Colorado’s Anti-Discrimination Act. Phillips maintained he had a First Amendment right to refuse to bake the cake, but the Commission found him in violation of the Act and the Colorado Supreme Court affirmed. The Court, in a 7-2 decision by Justice Kennedy, the same justice who penned the decision finding a constitutional right to same-sex marriages in Obergefell, reversed on the narrow grounds that the Commission’s open hostility to Phillips’ religious views constituted a violation of his First Amendment right to exercise his religion, leaving the free speech issue for another day. While noting the right of gay persons to be treated with dignity, the majority held that Phillips’ religious views were also entitled to “neutral and respectful consideration,” which was not reflected in the record of the Commission’s hearings, where his views were compared to a defense of slavery or the Holocaust. The Court also contrasted the Commission’s actions with those in which the Commission found no violation of the Act when three other bakers declined to bake cakes that were to be derogatory toward same-sex marriage, as further evidence of its hostility. Justice Kagan, joined by Justice Breyer, filed a concurrence arguing that the Commission could have fairly treated Phillips differently from the other bakers had the Commission otherwise acted neutrally. Justice Gorsuch, joined by Justice Alito, penned a concurrence disagreeing with Justice Kagan, arguing that there was no reasonable way for the Commission to treat Phillips differently from the other bakers. Justice Thomas, joined by Justice Gorsuch, filed a concurrence arguing that Phillips should have also won under his free speech claim, that his cakes were speech and he could not be compelled to speak in a way that violated his religious views. Justice Ginsburg, joined by Justice Sotomayor, dissented, arguing that the Commission’s actions were not hostile to Phillips in a way that violated his right to free expression. A link to the decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is here.

| David A. Rahnis

Virginia Practice Tip – Enforceability of Leases under Statute of Conveyances

On May 10, 2018, the Virginia Supreme Court issued a unanimous opinion in an appeal regarding the enforceability of a commercial lease. In The Game Place, L.L.C., et al. v. Fredericksburg 35, LLC the justices reviewed and applied the Statute of Conveyances, which is set forth in the Code of Virginia §55-2. The Statute of Conveyances requires that any freehold in land for a term of more than five years, including leases, must be accomplished by deed or will.

In this case, a commercial lessor, Fredericksburg 35, LLC, sued a lessee, The Game Place, L.L.C., for unpaid rent under a 15-year lease after The Game Place vacated the premises before the expiration of the 15-year term. The Game Place was current on its rent at the time it vacated the premises and terminated what it referred to as its “month-to-month periodic tenancy.” The Game Place claimed that the lease was unenforceable under the Statute of Conveyances, Code §55-2, because it was not in the form of a deed, featuring the common-law formalities of a seal or the relaxed seal substitutes available under Code §11-3. The court rejected the trial court’s reasoning that “the law looks at substance not form,” countering that “[u]nder the common law, a sealed contract means just that, a contract with a seal.”

The court found the 15-year lease unenforceable as a matter of law with respect to its 15-year lease term, because the lease violated the Statute of Conveyances and the common-law seal requirements of a deed. In recognizing that the lessor-lessee relationship could only be enforced as a month-to-month tenancy, the court reversed the trial court, and entered final judgment in favor of both the The Game Place and its personal guarantor.

In light of this decision, it is clear that the Virginia Statute of Conveyances is alive and well and will be applied and enforced by Virginia courts. Virginia leases with a term of more than five years that do not meet the requirements of a deed executed under seal run the risk of not being enforceable as to their term. As such, all lease agreements in Virginia should be prepared with the Statute of Conveyances in mind.

| , Brian W. Thompson

D.C. Real Estate Loan Drafting Guidance

Practical Law, a Thomson Reuters company that publishes online resources for attorneys, recently launched a state-by-state survey providing Real Estate Loan Drafting Guidance that caters to real estate finance practitioners.  Erica Litovitz and Brian W. Thompson contributed the DC-specific content, which Practical Law published on May 29, 2018 and is now available to subscribers of Practical Law. Published in the form of a Q&A, the guidance addresses DC’s laws and customary practices relating to the drafting of loan documentation. The Q&A touches on techniques for drafting enforceable security instruments, pitfalls to avoid when perfecting various types of security interests, foreclosing lenders’ rights under assignments of leases and rents, transfer and recordation taxes on security instruments, and a host of issues relating to lien priority.

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Private Investigations Not Compensated Under Mandatory Victims Restitution Act

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of certain federal offenses to reimburse victims for “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. sec. 3663A(b)(4). When Sergio Lagos defrauded a lender for tens of millions of dollars, that lender spent nearly $5 million investigating Lagos on its own and litigating against him in bankruptcy court. The lender requested that it receive restitution under the Act, and the Fifth Circuit affirmed the award of those fees. The Court, in a short, unanimous opinion by Justice Breyer, reversed, holding that the “investigation” and “proceedings” referred to in the Act are limited to government investigations and criminal proceedings, and not private investigations or civil or bankruptcy proceedings. That the lender shared the fruits of its investigation with the Government did not make those costs recoverable either, indicating a narrow reading of the relief available under the Act. The opinion in Lagos v. United States is here.

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Police Cannot Search Vehicle Within Curtilage Of A Home Without A Search Warrant

The Fourth Amendment has long required that any police officer entering the curtilage of a home to have a search warrant. However, the Fourth Amendment also has an “automobile exception,” permitting warrantless searches of vehicles due to their ready mobility. In Collins v. Virginia, a police officer entered the curtilage of a home (its driveway) without a warrant to search a motorcycle covered by a tarp to determine that it had been stolen. When the owner of the stolen vehicle moved to suppress the evidence of the search, the Supreme Court of Virginia held that the automobile exception permitted the search. The Court, in an 8-1 opinion by Justice Sotomayor, reversed, holding that the automobile exception to the Fourth Amendment only extends to the vehicle itself, and does not override the requirement of a warrant for items within a home’s curtilage. Justice Thomas filed a concurrence noting his doubt that the result of this case—the exclusion of the search evidence—could be enforced against a state. Justice Alito penned a dissent arguing that the Fourth Amendment only prohibits “unreasonable” warrantless searches, and the search of the motorcycle in the driveway here was reasonable.

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Private Arbitration Agreements Preclude Employee Class Actions

In Epic Systems Corp. v. Lewis, employees sued their employer in a class action for violation of the Fair Labor Standards Act. Those employees each had signed an agreement to arbitrate employment disputes under the Federal Arbitration Act, and the employer invoked those agreements to preclude the class actions. The employees argued that the National Labor Relations Act triggered the FAA’s savings clause, allowing the class actions to proceed. The Ninth Circuit, in a 2-1 decision, agreed with the employees. The Court, in a 5-4 decision by Justice Gorsuch, reversed, holding that the FAA’s savings clause exempting arbitration “upon such grounds as exist at law” was not implicated by the NLRA nor did the NLRA abrogate the FAA’s preference to enforce arbitration provisions. The majority acknowledged that “the policy may be debatable but the law clear” on the issue, and the Court could not inject its own policy preferences for the statutory framework provided by Congress. Justice Thomas filed a concurrence arguing that the plain language of the FAA also compelled the same result, allowing revocation of an arbitration provision only on grounds akin to revocation of a contract. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented, arguing that the implication of the Court’s ruling was to effectively permit employers to use arbitration agreements to avoid class actions, permitting them to take advantage of their employees.

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Prior Precedents Did Not Preclude Tribal Sovereign Immunity In A Property Dispute

After the Upper Skagit Indian Tribe purchased a 40-acre parcel of land in Washington State, a survey of that parcel revealed that approximately an acre of it lay on the other side of a boundary fence, which the Tribe’s new neighbors, the Lundgrens, believed they had owned for decades. The Lundgrens file a quiet title action, and the Tribe asserted sovereign immunity. The Washington Supreme Court rejected the Tribe’s sovereign immunity claim under the U.S. Supreme Court’s previous decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251 (1992). The Court, in a 7-2 decision by Justice Gorsuch, reversed, holding that the Yakima decision did not foreclose a tribe’s sovereign immunity in an in rem suit, since Yakima only interpreted an old statute, and did not directly address the issue. The Court remanded to the state court to consider the Lundgrens’ alternative argument, that the Tribe waived its sovereign immunity when it purchased immovable property in the same manner as a private individual. Chief Justice Roberts, joined by Justice Kennedy, filed a concurrence noting that if the Tribe prevails on remand on the immovable property exception, it could create an untenable situation where a tribe could use sovereign immunity as a sword to seize private land with impunity. Justice Thomas, joined by Justice Alito, dissented, arguing that the immovable property exception should apply. A link to the decision in Upper Skagit Tribe v. Lundgren is here.

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Complaints Of Use Of Full Restraints Moot After Criminal Cases Ended

A group of criminal defendants challenged the policy of the United States District Court for the Southern District of California, which permitted officers to put in-custody defendants in full restraints for nonjury proceedings in court. The district court denied the claims, but while the appeal before the Ninth Circuit was pending all of the cases involving those defendants resolved. The Ninth Circuit held that the claims were a functional class action, and used the Supreme Court’s civil class action decisions to hold that the claims were not moot as a result of the underlying cases being resolved. The Court, in a unanimous decision by Chief Justice Roberts, reversed, holding that the claims could not be analogized to civil class actions claims, and thus were moot as soon as the underlying cases ended. The Court also held that the claims did not fall under the exception for cases that are capable of repetition, yet evading review, because the doctrine did not extend to those who would engage in further criminal conduct. A link to the decision in United States v. Sanchez-Gomez is here.

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Drivers Have A Reasonable Expectation Of Privacy In A Car Rented By Another

In Byrd v. United States, Terrence Byrd was pulled over while driving a car rented by Latasha Reed, although the rental agreement did not list Byrd as an authorized driver. The police searched Byrd’s car and discovered 49 bricks of heroin in the trunk. Byrd moved to suppress the evidence as fruits of an unlawful search, but the district court and Third Circuit both concluded that since he was not authorized to drive the rental car, he had no expectation of privacy in its contents. A unanimous Court, in an opinion by Justice Kennedy, reversed, holding that since Byrd was the sole occupant of the rental car, his ability to exclude others from the vehicle created a reasonable expectation of privacy over it, much like the case in Jones v. United States, 362 U.S. 257 (1960), where an occupant of an apartment was entitled to the same Fourth Amendment protection even though he was not an official renter. The Court acknowledged, however, that if Byrd had stolen or fraudulently obtained the car he would not have any protections, and allowed the Government to argue that issue on remand, as well as whether the officers had probable cause to search regardless. Justice Thomas, joined by Justice Gorsuch, filed a concurrence expressing his doubts on test for determining a person’s reasonable expectation of privacy, noting questions that were not (and should have been) part of the case. Justice Alito filed a short concurrence noting that the facts concerning the rental agreement and other issues may be important to the analysis as well.

 

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Court Rejects Facial-Insufficiency Challenge To Overbroad Wiretap Orders

A federal judge is only authorized to issue a wiretap order for wiretaps conducted within his or her jurisdiction. In Dahda v. United States, a Kansas federal judge issued wiretap orders authorizing wiretaps in Kansas, but also contained language permitting wiretaps in Missouri. Federal investigators conducted the wiretaps in Missouri, and the evidence they gathered led to Los and Roosevelt Dahda being indicted for a drug conspiracy. The Dahdas argued that the orders were facially insufficient and therefore the evidence garnered through them (including the wiretaps in Kansas) should be suppressed, but the trial court denied the motion and the Tenth Circuit affirmed. The Court, in a unanimous opinion by Justice Breyer (with Justice Gorsuch recused), affirmed again, holding that since the wiretap orders did not lack any information required by law, and were legally sufficient absent the overbroad language, they were not facially insufficient. In other words, not every legal defect in a wiretap order will make that order facially insufficient. However, the Court did reject the Tenth Circuit’s application of the “core concerns” test from United States v. Giordano, 416 U.S. 505 (1974), to wiretap orders.

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Court Strikes Down Federal Law Banning Sports Betting

In a 7-2 opinion by Justice Alito, the Court reversed the Third Circuit and held that the Professional and Amateur Sports Protection Act was unconstitutional for violating the “anticommandeering rule” inherent in the Tenth Amendment, as it impermissibly sought to regulate state regulation of sports betting. The Act in question forbid states from authorizing betting schemes based on competitive sporting events, and also prohibited states from licensing such schemes. New Jersey passed a law repealing its state ban on certain sporting events, and the NCAA sued to enforce the Act. First, the Court held that New Jersey’s law to repeal restrictions did constitution “authorization” of betting schemes that would bring it subject to the Act’s prohibition. The Court also held that the Act was not severable, and the whole must be struck down instead of just the portions New Jersey challenged. Justice Breyer joined in the majority opinion to the extent the Act was held to be unconstitutional, but filed a partial dissent agreeing with the dissenters (Justices Ginsburg and Sotomayor) that the Act was severable and could be preserved. Justice Thomas filed a concurrence noting his discomfort with modern application of severability.

A link to the opinion in Murphy v. NCAA is here.

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Sixth Amendment Permits Defendant To Insist On Not Conceding Guilt For First-Degree Murder

Robert McCoy was charged with first-degree murder for killing his estranged wife’s mother, stepfather, and son. The evidence was damning, but McCoy insisted that he was innocent. His attorney at trial, Larry English, decided that the best strategy in the face of the evidence was to admit to the jury that McCoy committed the murders, but argue that his mental state precluded him from having the necessary specific intent for first-degree murder, thereby saving him from the death penalty. The jury found McCoy guilty on all three murders and sentenced him to death. McCoy sought a new trial, and the Louisiana Supreme Court rejected the plea, holding that English had the authority to strategically concede guilt. The Court, in an opinion by Justice Ginsburg, reversed, holding that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and insist that his counsel not concede guilt, even when that counsel’s experienced opinion is that conceding guilt would be the best chance to avoid the death penalty. The Court also did not find any ethical issue with English permitting McCoy to insist on his innocence, even though English did not believe his story.  Justice Alito, joined by Justices Thomas and Gorsuch, dissented, arguing that English’s concession as to the killings was not a concession that his client committed first-degree murder, and that the “highly unusual facts” of the case did not warrant the creation of any new right. A link to the opinion in McCoy v. Louisiana is here.

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Court Strikes Portion Of Immigration and Naturalization Act as Void for Vagueness

In one of Justice Scalia’s last majority opinions before his death, the Court held that part of a federal law defining “violent crime” was unconstitutionally void for vagueness in Johnson v. United States, 576 U.S. — (2015). The Immigration and Nationality Act similarly provided that a person could be deported for committing an “aggravated felony,” which included a “crime of violence” as part of the definition. In this case, James Dimaya was convicted of California first degree burglary, and the Board of Immigration held that the offense was a “crime of violence” under the Act, thus subjecting him to removal, because an “ordinary case” of first degree burglary would likely include some measure of violence. The Ninth Circuit held that “crime of violence” was similarly vague as “violent crime” under Johnson, and so ruled it unconstitutional. The Court, in a fractured 5-4 opinion by Justice Kagan, affirmed, holding that the principle of Johnson had a straightforward application to the term “crime of violence” here, and thus it was void for vagueness. Justice Gorsuch, providing the necessary fifth vote, filed a concurrence stating his view that “vague laws invite arbitrary power,” and that the void for vagueness doctrine is properly rooted in the fabric of the Constitution’s Due Process Clause. Chief Justice Roberts, joined by Justices Kennedy, Thomas, and Alito, dissented, arguing that the issues that made “violent crime” problematically void in Johnson did not apply here. Justice Thomas, joined by Justices Kennedy and Alito, took a more philosophical approach, questioning whether the void for vagueness doctrine was constitutionally sound, and whether the Court could have properly upheld the statute by adopting a different test for determining whether a crime fit the definition.

A link to the decision in Sessions v. Dimaya is here.

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Court Awards Qualified Immunity To Officer Who Shot Woman Claiming Excessive Force

In Kisela v. Hughes, officers reporting to a call of a woman acting erratically with a large knife discovered Ms. Hughes emerging from her house with a knife in her hand, heading toward another woman, Ms. Chadwick, who it turned out was Hughes’ roommate. Hughes stopped six feet from Chadwick, and the officers drew their firearms and told Hughes to drop the knife. Hughes appeared calm, and Chadwick told the officers to “take it easy.” But one officer, Kisela, opened fire, shooting Hughes four times. Hughes sued, alleging Kisela used excessive force. The district court dismissed the claim, but the Ninth Circuit reversed, holding that the actions were sufficient to demonstrate excessive force, and that the officer was not entitled to qualified immunity because the amount of force he used was in excess of clearly established law. Seven members of the Court, in a per curiam opinion, reversed, holding that Kisela was entitled to qualified immunity regardless of his use of force. Emphasizing how officers are often forced to make split-second decisions in situations that are factually unique, the Court held that the Ninth Circuit failed to properly implement the qualified immunity standard since it was “far from obvious” that Hughes was of no danger to Chadwick, given the totality of the circumstances. Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that Kisela’s actions were clearly unreasonable in the circumstances.

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Service Advisors Are Exempt From Fair Labor Standards Act Overtime-Pay Requirement

The Fair Labor Standards Act exempted “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” from overtime-pay requirements under the Act. In Encino Motorcars, LLC v. Navarro, a group of service advisors sued for overtime pay under the Act when the Department of Labor decided in 2011 that they were excluded from the exemption. The Court had previously ruled that the Department’s rule was not entitled to deference, but the Ninth Circuit held that the Act’s exemption did not apply to service advisors anyway. The Court, in a close 5-4 decision by Justice Thomas, reversed, holding that service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles” under the plain text of the Act. While a service advisor does not do the actual maintenance on a customer’s vehicle, the Court found that s/he is indeed a salesperson who facilitates that maintenance. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented, arguing that the exemptions should be read more narrowly.