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| Bob Hurt <bob@bobhurt.com>: Jun 27 06:43PM -0400 -------- Forwarded Message -------- Subject: ***SPAM*** United States Supreme Court News Date: Thu, 27 Jun 2019 18:07:38 -0000 From: Willamette Law Online <wlo-info@willamette.edu> Reply-To: wlo-info@willamette.edu United States Supreme Court News Willamette Law Online - Willamette University College of Law The United States Supreme Court has issued the following opinions: DECISIONS (1) ADMINISTRATIVE LAW: When determining whether a court must follow an order issued by an administrative agency, a court must first determine whether the order is legislative or interpretive and whether the petitioner had a prior and adequate opportunity to seek judicial review of the order. [Read Summary Online] (2) CIVIL RIGHTS § 1983: Property owners with an actionable takings claim are no longer required to litigate state action for just compensation before pursuing a federal claim under 42 U.S.C. §1983, overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985). [Read Summary Online] (3) CIVIL RIGHTS § 1983: The statute of limitations for a claim brought under 42 U.S.C. §1983, alleging the use of fabricated evidence, begins to run when criminal proceedings against a defendant are terminated in his or her favor. [Read Summary Online] (4) CONSTITUTIONAL LAW: Sex Offender Registration and Notification Act (SORNA) provision 34 U. S. C. §§20913(d), does not violate the nondelegation doctrine by allowing the Attorney General to enforce and apply the Act registration requirements to pre-Act offenders. [Read Summary Online] (5) CONSTITUTIONAL LAW: States may not tax trusts based solely on the in-state residency of a beneficiary. [Read Summary Online] (6) CRIMINAL LAW: A state may not use preemptory challenges that are substantially motivated by discriminatory intent to strike prospective jurors in violation of the Fourteenth Amendment to the Constitution and United States Supreme Court precedent. [Read Summary Online] (7) CRIMINAL LAW: In a prosecution under §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. [Read Summary Online] (8) FIRST AMENDMENT: Under the Establishment Clause, the passage of time gives rise to a presumption of constitutionality for monuments, symbols, and practices, even where such monuments, symbols, or practices include symbolic references to faith. [Read Summary Online] DECISIONS (1) PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. Date Filed: June 20, 2019 Case #: 17-1705 BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which THOMAS, ALITO, and GORSUCH, JJ., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/17-1705_8n59.pdf ADMINISTRATIVE LAW: When determining whether a court must follow an order issued by an administrative agency, a court must first determine whether the order is legislative or interpretive and whether the petitioner had a prior and adequate opportunity to seek judicial review of the order. The Telephone Consumer Protection Act (TCPA)prohibits any person from faxing an unsolicited advertisement. 47 U.S.C. §227(b)(1)(C). The Administrative Orders Review Act (Hobbs Act) gives federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend. . . or to determine the validity of . . . final orders of the Federal Communication Commission"(FCC). 28 U.S.C. §2342(1). The FCC issued an order in 2006 which included faxes promoting free materials as “unsolicited advertisements.” Petitioners sent a fax to Respondents promoting Petitioner’s free reference manual. Respondents claim this violated the TCPA. The district court dismissed the case. The Fourth Circuit vacated, and held that the district court should have adopted the 2006 FCC interpretation of “unsolicited advertisement,” which includes faxes promoting free goods. The Supreme Court granted certiorari to determine whether the Hobbs Act requires a district court to follow the FCC’s order. The Court vacated and remanded for the lower court to decide two preliminary questions. First, whether the 2006 FCC Order is a legislative rule issued pursuant to statutory authority and having the force of law, or an interpretive rule which lacks the force of law. Second, whether PDR had a previous and adequate opportunity to seek judicial review of the FCC’s Order. If they did not, then the APA may permit Petitioner to challenge the Order’s validity in this proceeding. VACATED and REMANDED.[Summarized by: Margaret Dick] (2) Knick v. Township of Scott, Pennsylvania Date Filed: June 21, 2019 Case #: 17-647 ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/17-647_m648.pdf CIVIL RIGHTS § 1983: Property owners with an actionable takings claim are no longer required to litigate state action for just compensation before pursuing a federal claim under 42 U.S.C. §1983, overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985). Petitioner owns property containing a small ancestral cemetery and was notified that she violated an ordinance that required “all” cemeteries be open to the public during the day. Petitioner sought declaratory relief in state court alleging the ordinance “effected a taking” of the property, but did not seek compensation through “inverse condemnation.” The court found that Petitioner did not show irreparable harm for which relief could be granted. Petitioner filed a claim under 42 U.S.C. §1983, alleging a violation of the Fifth Amendment Takings Clause. The district court dismissed, finding that under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), Petitioner had not pursued the required action for just compensation in state court and the Third Circuit affirmed. The Supreme Court overruled Williamson County, reasoning in favor of its holding in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005), concluding the just compensation state-litigation requirement placed an “unjustifiable burden” and Catch-22 upon any property owner with an actionable takings claim because when a claim is filed first in state court, the owner runs the risk of the preclusive effect of barring the federal court action if the state action is unsuccessful. VACATED and REMANDED. [Summarized by: Jodi Maynard] (3) McDonough v. Smith Date Filed: June 20, 2019 Case #: 18-485 SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, and KAVANAUGH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KAGAN and GORSUCH, JJ., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-485_g2bh.pdf CIVIL RIGHTS § 1983: The statute of limitations for a claim brought under 42 U.S.C. §1983, alleging the use of fabricated evidence, begins to run when criminal proceedings against a defendant are terminated in his or her favor. Petitioner was criminally prosecuted for allegedly processing forged primary election ballots in Troy, New York. After aquittal, Petitioner sued Respondent under 42 U.S.C. §1983, alleging Respondent fabricated evidence to convict Petitioner of criminal charges and malicious prosecution. The district court dismissed both claims, holding the §1983 claims as untimely. The Second Circuit affirmed, holding that the statute of limitations began to run when Petitioner had knowledge of the fabricated evidence, and when he suffered a loss of liberty as a result. The Supreme Court begins with identifying which liberty was infringed upon, and agrees with Petitioner that the common law tort of malicious prosecution was the injury suffered. Analogizing Petitioner’s case to Heck v. Humphrey, with the aid of Wallace v. Kato, the Court finds that challenging fabricated evidence in a criminal proceeding prior to its termination would likely create parallel civil and criminal litigation over the same topic. To avoid accrual of such litigation, the statute of limitations must begin at the termination of the criminal proceeding. The holding is further supported by the desire to avoid issues in jurisdictions where prosecutions can last as long or longer than the relevant civil limitations period. REVERSED AND REMANDED. [Summarized by: Matthew Flores] (4) Gundy v. United States Date Filed: June 20, 2019 Case #: 17-6086 KAGAN, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. GORSUCH, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KAVANAUGH, J., took no part in the consideration or decision of the case. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf CONSTITUTIONAL LAW: Sex Offender Registration and Notification Act (SORNA) provision 34 U. S. C. §§20913(d), does not violate the nondelegation doctrine by allowing the Attorney General to enforce and apply the Act registration requirements to pre-Act offenders. The Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. §20913, mandates that sex offenders register before completion of their prison sentences. Petitioner, a pre-Act offender released from prison post-Act, was convicted of failing to register. Petitioner argued that Congress’ delegation of legislative authority to the Attorney General regarding the applicability of SORNA to pre-Act offenders was unconstitutional. The district court and the Second Circuit rejected Petitioner’s claim. The Supreme Court affirmed, reasoning that the nondelegation doctrine prohibits the transfer of legislative power by Congress to another branch of government; however, this Court held in Reynolds v. United States,that the limited authority given to the Attorney General to apply SORNA to pre-Act offenders is constitutional. 565 U.S. 432 (2012). The Reynolds Court found that Congress intended the “basic statutory purpose” and “sex offender definition” of SORNA to include pre-Act offenders and understood that registering offenders who were never previously required to register, were missing, or dead, were legal complications. These complications allowed delegation to the Attorney General of the executive branch and required enforcement and application of the Act to pre-Act offenders “as soon as feasible.” This limited delegation of authority does not violate the nondelegation doctrine. AFFIRMED. [Summarized by: Jodi Maynard] (5) North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust Date Filed: June 20, 2019 Case #: 18-457 SOTOMAYOR, J., delivered the opinion for a unanimous Court. ALITO, J., filed a concurring opinion, in which ROBERTS, C. J., and GORSUCH, J., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-457_2034.pdf CONSTITUTIONAL LAW: States may not tax trusts based solely on the in-state residency of a beneficiary. The trust to which Respondent is a beneficiary was taxed by Petitioner, although she had not received any income during the years at issue. Respondent argues that the tax violated the Due Process Clause of the Fourteenth Amendment. Respondent’s trustee filed suit in state court, which held in favor for Respondent, holding that the tax was unconstitutional because the requisite connection between the State and the trust was lacking. The state court of appeals and supreme court both affirmed. On appeal, the United States Supreme Court affirmed, holding that States are prohibited from taxing trusts “based only on the in-state residency of trust beneficiaries.” The Court reasoned that, in applying International Shoe Co. v. Washington, 326 U.S. 310 (1945), a state is permitted to impose taxes only when “certain minimum contacts” have been established. Similar state taxes have been held constitutional where the trust itself, its trustees, or any income distributed therefrom reside or occur within the state. However, the “presence of in-state beneficiaries alone” is not enough to support the taxation of a trust when those beneficiaries have not received income, have no right to demand income, and may never actually receive income from the trust. Therefore, the State’s tax is unconstitutional. AFFIRMED.[Summarized by: Teresa Schulte] (6) Flowers v. Mississippi Date Filed: June 21, 2019 Case #: 17-9572 KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined as to Parts I, II, and III. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf CRIMINAL LAW: A state may not use preemptory challenges that are substantially motivated by discriminatory intent to strike prospective jurors in violation of the Fourteenth Amendment to the Constitution and United States Supreme Court precedent. Petitioner, a black man, stood trial for the murders of four people a total of six times. The Mississippi Supreme Court overturned several of the previous convictions for prosecutorial misconduct. Among other instances of misconduct, the State of Mississippi used preemptory strikes to dismiss prospective black jurors and the court found these strikes to be racially motivated. At the sixth trial, the State used preemptory strikes to dismiss five of the six prospective black jurors. The Mississippi Supreme Court affirmed the conviction and upheld it on remand after appeal to the United States Supreme Court. The United States Supreme Court applied the rule from Batson v. Kentucky, 476 U.S. 79 (1986), that prohibits a state from racial discrimination in a preemptory challenge of a prospective juror in a criminal trial. The Court examined four categories of evidence to find a clear pattern of racial discrimination over the course of Petitioner’s trials. The Court reviewed the large disparity in the treatment, questioning, and number of black prospective jurors dismissed compared to white jurors in each trial. The Court specifically found clear error in the dismissal of one black prospective juror at the sixth trial. REVERSED AND REMANDED. [Summarized by: Ayla O'Scannell] (7) Rehaif v. United States Date Filed: June 21, 2019 Case #: 17-9560 BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/17-9560_new_onkq.pdf CRIMINAL LAW: In a prosecution under §922(g) and §924(a)(2), the Government must prove both that the defendant knew he |
| Bob Hurt <bob@bobhurt.com>: Jul 01 07:01PM -0400 United States Supreme Court News Willamette Law Online - Willamette University College of Law The United States Supreme Court has granted certiorari in the following cases and issued the following opinions: DECISIONS (1) ADMINISTRATIVE LAW: Under the Auer deference doctrine, courts should defer to a government agency’s interpretation of a regulation only where such regulation is ambiguous; unambiguous regulations must be given the effect of their plain meaning. [Read Summary Online] (2) ADMIRALTY: Punitive damages are unavailable for mariner plaintiffs in claims of unseaworthiness. [Read Summary Online] (3) CONSTITUTIONAL LAW: State-mandated durational residence requirements for business owners applying for retail liquor store licensing is unconstitutional under the dormant Commerce Clause and is not protected by the Twenty-First Amendment § 2. [Read Summary Online] (4) CONSTITUTIONAL LAW: 18 U. S. C. §924(c)(3)(B)’s definition of a crime of violence as an "offense that by its nature involves a risk of force" mandates the use of a categorical approach, making the clause unconstitutionally vague. [Read Summary Online] (5) CORPORATIONS: Under Exemption 4 of the Freedom of Information Act, commercial and financial information that is “customarily and actually treated as private by its owner and provided to the government under an assurance of [express or implied] privacy” is deemed confidential. [Read Summary Online] (6) CRIMINAL LAW: The mandatory minimum sentence imposed by 18 U.S.C. § 3853(k) violates the right to a trial by jury guaranteed by the Fifth and Sixth Amendments. [Read Summary Online] (7) FIRST AMENDMENT: The prohibition against immoral or scandalous trademarks in 15 U.S.C. §1052(a) is viewpoint based discrimination and violates the First Amendment. [Read Summary Online] CERTIORARI (1) ADMINISTRATIVE LAW: Whether this Court Should Grant Certiorari to Resolve an Important Point of Law and a Conflict Between Circuits Concerning Judicial Review of an Interpretive VA Regulation Under the Administrative Procedures Act and Whether It Should Be Foreclosed Under 38 U.S.C. § 502 When the Veterans Judicial Reform Act Provides the Sole Avenue for Review of the Secretary’s Decisions [Read Summary Online] (2) ADMINISTRATIVE LAW: Whether the American Invents Act, 35 U.S.C. § 314(d), permits appeal of the PTAB’s decision to institute an inter partes review upon finding that the Act's § 315(b) time bar did not apply. [Read Summary Online] (3) ADMINISTRATIVE LAW: Whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting the Department of Veterans Affairs’ definitive interpretation of its own regulation, even if the VA chooses to promulgate that rule through its adjudication manual. [Read Summary Online] (4) CIVIL PROCEDURE: Whether a request for equitable tolling by a person subject to the criminal alien bar is a factual determination such that judicial review is precluded by 8 U.S.C. §1252(a)(2)(C) or a legal determination such that it is reviewable under §1252(a)(2)(D) as a question of law. [Read Summary Online] (5) COPYRIGHT: Whether the government edicts doctrine extends to––and thus renders uncopyrightable––works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated. [Read Summary Online] (6) CRIMINAL LAW: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U. S. 524 (2005). [Read Summary Online] (7) INSURANCE LAW: Whether a congressional intent derived from the legislative history of an appropriations rider can impliedly repeal a statutory payment obligation of the government. [Read Summary Online] DECISIONS (1) Kisor v. Wilkie, Secretary of Veterans Affairs Date Filed: June 26, 2019 Case #: 18-15 KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Parts II–A and III–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed an opinion concurring in part. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, in which KAVANAUGH, J., joined as to Parts I, II, III, IV, and V, and in which ALITO, J., joined as to Parts I, II, and III. KAVANAUGH, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf ADMINISTRATIVE LAW: Under the Auer deference doctrine, courts should defer to a government agency’s interpretation of a regulation only where such regulation is ambiguous; unambiguous regulations must be given the effect of their plain meaning. Petitioner sought disability benefits for post-traumatic stress disorder from the Department of Veterans Affairs (VA). Petitioner's claim was denied, but reopened his claim with a new psychiatric report. The VA granted disability benefits going forward but would not grant retroactive benefits to the original application date without new “relevant” records. The Court of Appeals for Veterans Claims and Court of Appeals Federal Circuit both affirmed but the later did so based on Auer deference for the Board’s interpretation of its rule. The Supreme Court held the court below did not use all of its interpretive tools prior to determining ambiguity and applying Auer deference. The Court granted certiorari specifically to decide whether to overrule Auer as Petitioner argues and the Court answered “No.” The Court must be convinced that Auer deference is wrong and also overcome stare decisis, which demands “special justification”. Because deference traces back to late nineteenth century, the Court has repeatedly held agency interpretations as the controlling weight when regulation is ambiguous, unless it is plainly erroneous or inconsistent. However, deference can only be used once a court finds the regulation genuinely ambiguous, exhausting all interpretive tools of construction as if there were no agency. Agency interpretation must also reflect “fair and considered judgment” to receive Auer deference. VACATED and REMANDED to reconsider whether Auer deference is warranted, bearing in mind the principles outlined in this opinion.[Summarized by: Jessica Watkins] (2) Dutra Group v. Batterton Date Filed: June 24, 2019 Case #: 18-266 ALITO, J., delivered the opinion of the Court, in which R OBERTS, C. J., and THOMAS, K AGAN, G ORSUCH, and K AVANAUGH, JJ., joined. G INSBURG, J., filed a dissenting opinion, in which B REYER and SOTOMAYOR, JJ., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-266_m6io.pdf ADMIRALTY: Punitive damages are unavailable for mariner plaintiffs in claims of unseaworthiness. Respondent is a mariner that was injured while working on Petitioner’s vessel and sought general and punitive damages in federal court. Petitioner moved to dismiss the punitive damages claim, arguing punitive damages are not available for unseaworthiness actions. The district court denied the motion but certified an interlocutory appeal on the question. The Ninth Circuit Court of Appeals affirmed, holding punitive damages are available for claims of unseaworthiness, reaffirming a circuit court split on the issue. The Supreme Court reversed, following precedent in Miles v. Apex Marine Corp., 498 U. S. 19 (1990), and Atlantic Sounding Co. v. Townsend, 557 U. S. 404 (2009). Miles established the primary focus for the Court is to consider “legislative enactments for policy guidance,” but also stated that the Court may supplement statutory remedies to ensure the policies served by the statutes are upheld. In Atlantic Sounding, the Court allowed a punitive damage award noting a historical basis for “certain maritime torts, including maintenance and cure.” In the instant case, finding no historical basis or precedent to allow punitive damages for unseaworthiness and to further uniform application in decisions, the Court held that punitive damages “remain unavailable in unseaworthiness actions.” REVERSED and REMANDED. [Summarized by: Jodi Maynard] (3) Tennessee Wine and Spirits Retailers v. Thomas, Exec. Dir. of the Tennessee Alcoholic Beverage Commission Date Filed: June 26, 2019 Case #: 18-96 ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, B REYER, S OTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf CONSTITUTIONAL LAW: State-mandated durational residence requirements for business owners applying for retail liquor store licensing is unconstitutional under the dormant Commerce Clause and is not protected by the Twenty-First Amendment § 2. Petitioner is a trade association for in-state liquor retailers. Respondent, acting under the direction of the state attorney general, declined to enforce statutory residency requirements on applicants with non-resident stockholders. Petitioner brought suit and the case was removed to federal court. The district court, following U.S. Supreme Court decision in Granholm v. Heald, 544 U. S. 460 (2005), concluded the residential requirements were unconstitutional. Petitioner appealed. Sixth Circuit Court of Appeals affirmed, finding the state residential requirements were “facially discriminate against out-of-state economic interests” and unconstitutional under the Twenty-First Amendment and the dormant Commerce Clause precedents. However, the circuit divided over the constitutionality specific to the 2-year residential requirement for an initial license. Petitioner sought certiorari, specifically challenging the Sixth Circuit's invalidation of the 2-year residency requirement applicable to initial liquor store applicants. The U.S. Supreme Court affirmed, finding that the 2-year residency requirement favored in-state residents over out-of-state residents, thus violating the dormant Commerce Clause. Further, as the requirement relates to the sale of alcohol, the Court considered the Twenty-First Amendment §2, which grants latitude to the states for legislation of alcohol, but reasoned that §2 is not intended to allow states “to restrict the importation of alcohol for purely protectionist purposes.” The Court held a 2-year durational residency requirement applicable to retail liquor store initial license applicants violates the Commerce Clause and is not shielded by the Twenty-First Amendment §2. AFFIRMED. [Summarized by: Jodi Maynard] (4) United States v. Davis Date Filed: June 24, 2019 Case #: 18-431 GORSUCH, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined, and in which ROBERTS, C. J., joined as to all but Part II–C. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-431_7758.pdf CONSTITUTIONAL LAW: 18 U. S. C. §924(c)(3)(B)’s definition of a crime of violence as an "offense that by its nature involves a risk of force" mandates the use of a categorical approach, making the clause unconstitutionally vague. A jury found Respondents guilty on multiple counts that included two separate violations of §924(c) based on Respondents brandishing a shotgun during robberies. Respondents appealed the convictions under §924(c)’s residual clause, arguing that §924(c)(3)(B)’s definition of a crime of violence was unconstitutionally vague under Supreme Court precedent. The Fifth Circuit agreed but sustained most of Respondents’ convictions under §924(c)(3)(A). Respondents sought a rehearing and argued that the Fifth Circuit should have vacated all their convictions under §924(c) after deeming the residual clause unconstitutionally vague, which prompted Petitioner to seek further review of §924(c)(3)(B)’s constitutionality before a full resentencing occurred. The Supreme Court affirmed that §924(c)(3)(B)’s definition of a crime of violence made the residual clause unconstitutionally vague. The Court reasoned that the legislative history and language of §924(c)(3)(B) mandated a categorical approach requiring judges to apply the residual clause to an imagined “ordinary case” of an offense, as opposed to real-world conduct. The Court then cited prior precedent deeming such a categorical approach vague because it requires a judgment based on an abstraction with respect to an unspecified level of risk. Accordingly, the Court vacated and remanded the Fifth Circuit’s decision to address Respondent’s rehearing petitions. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. [Summarized by: Connor McDonald] (5) Food Marketing Institute v. Argus Leader Media Date Filed: June 24, 2019 Case #: 18-481 GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,and THOMAS, ALITO, KAGAN, and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined. Full Text Opinion: https://www.supremecourt.gov/opinions/18pdf/18-481_5426.pdf CORPORATIONS: Under Exemption 4 of the Freedom of Information Act, commercial and financial information that is “customarily and actually treated as private by its owner and provided to the government under an assurance of [express or implied] privacy” is deemed confidential. Petitioner is an intervening party to a dispute between Respondent and the United States Department of Agriculture. Respondent requested access to “store-level data” regarding a nutrition assistance program, which the USDA retained. The USDA invoked Exemption 4 of the Freedom of Information Act (FOIA), which shields disclosure of certain confidential information. Respondent sued to compel disclosure. A federal district court found for Respondent and Petitioner intervened, appealing to the Eight Circuit, which affirmed. The Supreme Court first answers the question of whether Petitioner meets all factors required for standing, holding that it does. It then addresses the meaning of “confidential” as it is used in the FOIA. Finding that the lower courts grafted National Parks & Conservation Assn. v. Morton’s “competitive harm” test into the statute, the Court decides that they skipped the first step of looking to the common meaning of the term. The Court disagrees with this reliance on legislative history, and instead defines the term using Webster’s Dictionary. It further finds that earlier courts of appeals have accurately applied the same analysis, and agrees that Exemption 4 protects information that an individual wishes to keep private under either an express or implied promise from the government. REVERSED and REMANDED. [Summarized by: Matthew Flores] (6) United States v. Haymond Date Filed: June 26, 2019 Case #: 17-1672 GORSUCH, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, |
| Bob Hurt <bob@bobhurt.com>: Jun 26 09:24PM -0400 Exclusive On-line VIDEO Series Part 5 The Prosecutor & the Presidency Why Presidential Prosecutions Don't Work Meese & Hufstedler LOS ANGELES-- The Full Disclosure Network presents exclusive interviews with former U S Attorney General Edwin Meese III and 9th Circuit Court Judge Shirley Hufstedler who share their views on why Presidential Prosecutions have failed. This is part 5 of a 13 hour historical series entitled "The Prosecutor & The Presidency" featuring all the U.S. Attorneys General & Special and Independent Prosecutors involved in Presidential Investigations from Watergate to Whitewater and beyond Click HERE <http://r20.rs6.net/tn.jsp?f=0012-0s9EZR5OV89FuWOHs0YDLf3QDG8EpuqtFJkV2SN_7Qa0kqBfms5xIk2P5TTqITjd7wkQtof7fi9aVVjAMxZqzfjujyvzg0nBWZQyhTPF9DlUnQ9aRX607Dh8b05MwIrD9pJTWKt5HqjmJ0Z9R5GHkAxjiusEry-1tY2RuW4sFWThrtqvYck5aG3AyJv_5Dzx9WKuotuEXZkgEIWZT_6x9aJjGHeyyNAW1XyZnMyxJAdQNjxEnCj3RU71cdUiBkKYbuCspjO_w=&c=pqgdaEojWAKlVM9mTaJcYM3ffIZq97vEo7bw6WR-0qxXu9F4f82W7A==&ch=-bIZkSLghwUF-UoZnAQVvR-sG9GKFwI77IctzOpVRWWFh1kLfke_6g==> to watch a one minute trailer from the interviews. The entire series is available for viewing with a 5 day Free subscription. Quotes From Interviews: HUFSTEDLER: So far I think the investigation of Presidents during their time they are in office has not produced results, that have been good ones for the country. It is entirely too distracting, to be sure. MEESE: Well that whole investigation conducted by (Judge) Lawrence Walsh certainly went far beyond what had been originally intended (7 years) and occupied much more time. It was the most costly investigation on record, and went far beyond the allegations that were originally presented. * Here is a link to the website to sign up for a 5 day FreeTrial to view the entire series: https://thenewsbehindthenews.net/series/the-prosecutor-and-the-presidency/part-v-in-summary/ <http://r20.rs6.net/tn.jsp?f=0012-0s9EZR5OV89FuWOHs0YDLf3QDG8EpuqtFJkV2SN_7Qa0kqBfms5xIk2P5TTqITTOgAWnd-tuAVDr8X69Il2Jk_LduKz9giXojEjgSrKgXen1lrNriiTf-yHfv1jkjRIAnnB2cavhONbJKFVhkQQX2oBM_XMGN9XLVEa6p5Qa6r6Vq0SCH1sXhWNwXh1StmWL1EsM1hJ2L3NTTHPhiBPpeK6sOCsCMfzzbR1ydxIULerpYaS7hBoA==&c=pqgdaEojWAKlVM9mTaJcYM3ffIZq97vEo7bw6WR-0qxXu9F4f82W7A==&ch=-bIZkSLghwUF-UoZnAQVvR-sG9GKFwI77IctzOpVRWWFh1kLfke_6g==> |
| Bob Hurt <bob@bobhurt.com>: Jun 24 11:20AM -0400 ------------------------------------------------------------------------ Publius Huldah column How states can /man-up/ and stop abortion Publius Huldah *Publius Huldah* <http://www.renewamerica.com/columns/huldah> June 23, 2019 If the American People [and American lawyers] had been properly educated, they would know that our federal Constitution created a federal government of enumerated powers only; and that most of the powers delegated to Congress over the Country at Large are listed at Art. I, §8, clauses 1-16, US Constitution. "Abortion" is not listed among the enumerated powers. Therefore, Congress has no power to make any laws about abortion for the Country at Large.^*1* <http://www.renewamerica.com/columns/huldah/#fn1> And since "abortion" isn't "expressly contained" in the Constitution, it doesn't "arise under" the Constitution; and since state laws restricting abortion don't fit within any of the other categories of cases the federal courts are authorized by Art. III, §2, cl. 1 to hear, the federal courts also have no power over this issue. So from the beginning of our Constitutional Republic until 1973, everyone understood that /abortion is a State matter/. Accordingly, many State Legislatures enacted statutes restricting abortion within their borders. But in 1973, the US Supreme Court issued its opinion in Roe v. Wade <https://caselaw.findlaw.com/us-supreme-court/410/113.html> and made the absurd claim that Section 1 of the 14th Amendment contains a "right" to abortion. In Why Supreme Court opinions are not the 'Law of the Land,' and how to put federal judges in their place <http://www.renewamerica.com/columns/huldah/181115>, I showed why the Supreme Court's opinion in /Roe/ is unconstitutional. But Americans have long been conditioned to believe that the Constitution means whatever the Supreme Court says it means.^*2* <http://www.renewamerica.com/columns/huldah/#fn2> Accordingly, for close to 50 years, American lawyers and federal judges have mindlessly chanted the absurd refrain that /"Roe v. Wade/ is the Law of the Land"; State governments slavishly submitted; and 60 million babies died <https://www.lifenews.com/2018/01/18/60069971-abortions-in-america-since-roe-v-wade-in-1973/>. So who has the lawful authority to stop abortion? *1.* /*Congress*/ *has constitutional authority to ban abortion in federal enclaves and military hospitals* Over the federal enclaves, Congress has constitutional authority to ban abortion: Pursuant to Article I, §8, next to last clause, Congress is granted "exclusive Legislation" over the District of Columbia, military bases, dock-Yards, and other places purchased with the consent of the State Legislatures (to carry out the enumerated powers).^*3* <http://www.renewamerica.com/columns/huldah/#fn3> Article I, §8, cl.14 grants to Congress the power to make Rules for the government and regulation of the Military Forces. Accordingly, for the specific geographical areas described at Article I, §8, next to last clause, and in US military hospitals everywhere, Congress has the power to make laws banning abortion. *2. But* /*federal courts*/ *have no constitutional authority over abortion* Article III, §2, cl. 1 lists the ten categories of cases federal courts have authority to hear. They may hear /only/ cases: * "Arising under" the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States ["federal question" jurisdiction]; * Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party ["status of the parties" jurisdiction]; * Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State (or Citizens thereof) & foreign States, Citizens or Subjects ["diversity" jurisdiction].^*4* <http://www.renewamerica.com/columns/huldah/#fn4> /These are *the only* cases federal courts have authority to hear./ Alexander Hamilton wrote in Federalist No. 83 <http://www.foundingfathers.info/federalistpapers/fed83.htm> (8th para): "...the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. *The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction*, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority." [boldface added] Obviously, State laws restricting abortion don't fall within "status of the parties" or "diversity" jurisdiction; and federal courts haven't claimed jurisdiction on those grounds. Instead, they have asserted that abortion cases "arise under" the US Constitution! But in Federalist No. 80 <http://www.foundingfathers.info/federalistpapers/fed80.htm> (2nd para), Hamilton states that *cases "arising under the Constitution" concern* ** "...the execution of the provisions *expressly contained* in the articles of Union [the US Constitution]..." ^*5* <http://www.renewamerica.com/columns/huldah/#fn5> [boldface added] Obviously, "abortion" is not "expressly contained" in the Constitution. So it doesn't "arise under" the Constitution. In /Roe v. Wade/, the Supreme Court had to /*redefine*/ the word/*,*/ "liberty," which appears in §1 of the 14th Amendment, in order to claim that "abortion" "arises under" the Constitution. Section 1 of the 14th Amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, *liberty*, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [boldface added] ^*6* <http://www.renewamerica.com/columns/huldah/#fn6> /Do *you* see where it says that pregnant women have the "right" to abortion?/ It isn't there! So this is what the Supreme Court did to legalize killing babies: They said "liberty" means "privacy" and "privacy" means state laws banning abortion are unconstitutional. /And American lawyers and judges have slavishly gone along with this evil absurdity ever since!/ *3. States must* /*reclaim*/ *their traditionally recognized* /*reserved power*/ *to restrict abortion!* Since "abortion" is a power reserved by the States or the People, State Legislatures should reenact State Statutes restricting abortion. When a lawsuit is filed in Federal District Court alleging that the State Statute violates the US Constitution, the State Attorney General should file a motion in the Court to dismiss for lack of subject matter jurisdiction. He should point out that the Court has no constitutional authority to hear the case; *that* /*Roe v. Wade*/ *is* /*void*/ *for lack of subject matter jurisdiction*; that "abortion" is one of the many powers reserved by the States; and that the State Legislature properly exercised its retained sovereign power when it re-enacted the Statue restricting abortion. The State Attorney General should also advise the Court that if the Court denies the Motion to Dismiss, the State will not participate in the litigation and will not submit to any pretended Orders or Judgments issued by the Court. Now! Here is an interesting fact which everyone would already know if they had had a proper education in civics: *Federal courts have no power to enforce their own Judgments and Orders*. They must depend on the Executive Branch of the federal government to enforce their Judgments and Orders.^*7* <http://www.renewamerica.com/columns/huldah/#fn7> Since President Trump has proclaimed his opposition to abortion <https://www.lifenews.com/2019/06/19/president-donald-trump-slams-abortion-every-life-is-sacred-gift-from-god/>, who believes that he would send in the National Guard to force the State to allow physicians to kill more babies within the State? *Please understand*: An opinion or ruling from a federal court means /nothing/ unless the Executive Branch chooses to enforce it.^*8* <http://www.renewamerica.com/columns/huldah/#fn8> THIS IS THE EXECUTIVE BRANCH'S "CHECK" ON THE JUDICIAL BRANCH! If the President, in the exercise of his independent judgment, thinks that an Order or Judgment of a federal court is unconstitutional, it is his duty imposed by his Oath of Office ^*9* <http://www.renewamerica.com/columns/huldah/#fn9> to refuse to enforce it. *4. The modern day approach to dealing with absurd Supreme Court Opinions* But most pro-life lawyers will tell you we should proceed as follows: That we need to get a number of States to pass "heartbeat laws." Pro-abortion forces will then file lawsuits in federal district courts alleging that the heartbeat laws violate /Roe v. Wade/ and are "unconstitutional." Most States will lose in the federal district courts. But they can appeal to one of the 13 US Circuit Courts of Appeal. Most of the States will also lose in the Circuit Court. But if just one Circuit Court rules in favor of the heartbeat law, then there will be "conflict" among the Circuits and the US Supreme Court is likely to hear the issue. This will give the US Supreme Court the opportunity [years from now] to revisit /Roe v. Wade/, and they /might/ overrule it! But I suggest, dear Reader, that we must purge our thinking of the assumption that we can't have a moral and constitutional government unless Five Judges on the Supreme Court say we can have it. Since it is clear that federal courts have no constitutional authority over abortion, why do we go along with the pretense that they do? Why not just man-up and tell them, /"You have no jurisdiction over this issue"/? Our Framers would be proud of you. *Endnotes: * *^1 <http://www.renewamerica.com/columns/huldah/#fr1>* Accordingly, the federal Heartbeat Bill and the Pain-Capable Unborn Child Protection Act, to the extent they purport to apply outside federal enclaves and military hospitals, are unconstitutional as outside the scope of powers delegated to Congress over the Country at Large. ^2 <http://www.renewamerica.com/columns/huldah/#fr2> The Supreme Court was /created/ by Art. III, §1, US Constitution, and is completely subject to its terms. As a mere "creature," it may not re-write the document under which it holds its existence. ^3 <http://www.renewamerica.com/columns/huldah/#fr3> In Federalist No. 43 <http://www.foundingfathers.info/federalistpapers/fed43.htm> at 2., James Madison explains why Congress must have complete lawmaking authority over the District of Columbia and the federal enclaves. ^4 <http://www.renewamerica.com/columns/huldah/#fr4> The 11th Amendment reduced the jurisdiction of federal courts by taking from them the power to hear cases filed by a Citizen of one State against another State. ^5 <http://www.renewamerica.com/columns/huldah/#fr5> Federalist No. 80 <http://www.foundingfathers.info/federalistpapers/fed80.htm> (3rd & 13th paras) illustrates what "arising under the Constitution" means: Hamilton points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov't sues the State, the federal courts have authority to hear the case. ^6 <http://www.renewamerica.com/columns/huldah/#fr6>"Privileges and immunities" and "due process" are ancient Principles of English Jurisprudence well-known to earlier generations of American lawyers. "Equal protection" within §1 of the 14th Amd't means that with respect to the rights recognized by these ancient Principles, States were now required to treat black people the same as white people. See Raoul Berger, Government by Judiciary The Transformation of the Fourteenth Amendment. <http://lf-oll.s3.amazonaws.com/titles/675/0003_Bk.pdf> ^7 <http://www.renewamerica.com/columns/huldah/#fr7> In Federalist No. 78 <http://www.foundingfathers.info/federalistpapers/fed78.htm> (6th para), Hamilton shows why federal courts have no power to enforce their orders and judgments – they must rely on the Executive Branch to enforce them: "... the judiciary... will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. *The judiciary,* on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and *must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."* [caps are Hamilton's; boldface added] ^8 <http://www.renewamerica.com/columns/huldah/#fr8> During the Eisenhower administration, a federal court ordered the State of Arkansas to desegregate their public schools. *But the Governor of Arkansas refused to comply with the federal court orders. So President Eisenhower sent in the National Guard to force Arkansas to admit black students to a public school.* See this archived article <https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/0925.html#article> from the New York Times. Here, Eisenhower chose to enforce the Court's Order. But if he had decided that he would NOT enforce it, the schools would have remained segregated. /Federal courts are dependent on the Executive Branch of the fed. gov't to enforce their Orders/! /This/ is what Hamilton is talking about in Federalist No. 78. ^9 <http://www.renewamerica.com/columns/huldah/#fr9> The President's Oath is to "...preserve, protect and defend the Constitution of the United States" (Art. II, §1, last clause). It is not to obey the Judicial Branch of the fed. gov't. ------------------------------------------------------------------------ /Publius Huldah is a retired litigation attorney who now lives in Tennessee. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge). She now writes extensively on the U.S. Constitution, using the Federalist Papers to prove its original meaning and intent. She shows how federal judges and politicians have ignored Our Constitution and replaced it with their personal opinions and beliefs. She also shows how The People can, by learning our Founding Principles themselves, restore our Constitutional Republic./ © Copyright 2019 by Publius Huldah http://www.renewamerica.com/columns/huldah/190623 Send to a friend <http://www.renewamerica.com/column_sender.php?columnist=huldah&date=190623> Post to Facebook <http://www.facebook.com/sharer.php?u=http%3A%2F%2Fwww.renewamerica.com%2Fcolumns%2Fhuldah%2F190623&t=How+states+can+man-up+and+stop+abortion> Tweet |
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LEGAL NOTICE: /s/Sharon4Anderson@aol.com ECF_P165913Pacersa1299 telfx: 651-776-5835:Attorney ProSe_InFact,Private Attorney General QuiTam Whistleblower, www.taxthemax.blogspot.com The Electronic Communications Privacy Act, 18 U.S.C. Ch.119 Sections 2510-2521 et seq., governs distribution of this "Message," including attachments, may contain the originator'sproprietary information. The originator hereby notifiesrecipients Message review, dissemination, copying, and content-based actions. Authorized carriers of this message shall expeditiously deliver this Message to intended recipients. See: Quon v. Arch
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JohnLeschNotImmunevsCityAttorneyLyndseyOlson
A state representative who was sued for defamation is not entitled to immunity because comments he made about the St. Paul city attorney were personal or political and not part of any legislative activity.
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