Ball’s out, TIME, let me redraw the line before you call it. Good now. (Gabe)

Don’t like the decision of the Supreme Court, it can be changed, by congress.  That’s right.  We know the courts job is to apply the law to the facts.  If we had the power to change the process, we can’t change the facts, but we can change the law applied.  Change the game, change the outcome.  This article (article reference is broken into the White part and the Brown Part), the white part, sheds light on how congress may have the last word when the Supreme Court rules.  The Supreme Court doesn’t decide wrong and right, they do decide if the action was legal and sometimes even they have the opinion that their decision was not the right thing for an appellant. 

Lilly Ledbetter Act

Lilly Ledbetter was a fresh retiree of the Goodyear company in Alabama.  She was a foreman with the company for years and discovered that at the time of retirement she had made a fraction of the pay, and the least, as compared to her equal colleagues. She sued under the Civil Rights Act of 1964.  She sued, won back pay and damages in trial, then Goodyear successfully appealed, and the eleventh circuit reversed.  The issue was the statute of limitations. The act provisioned for discrete instances and didn’t account for behavior over time.  The limit was 180 days after a discrete action such as a termination or failure to promote.  The case went to the Supreme Court LEDBETTER v. GOODYEAR TIRE & RUBBER CO. INC., 127 S.Ct. 2162 (2007) and was affirmed for reason the violations were not presented within statute.  Called a “statutory ruling”. 

Let’s change the out of bounds line

In Justice Ginsberg’s dissent, she pretty much put the ball in congresses court to change the law.  It happened.  The Lilly Ledbetter Fair Pay Act was passed in 2009.  In this case congress righted the wrong.  They stepped up and refined the law to prevent another 'slip through the cracks' case. Going back in history, this was common actions for congress in a period between 1978-1998.  Congress passed or attached legislature to correct loopholes in the law.  They did everything from create an Act to attach a couple sentences to annual Acts such as the National Defense Authorization Act, which is released annually.  The corrective action by congress is called a “statutory override”. 

What’s next to fix? 

In the past 20 years what’s been passed?  Not much.  There is plenty of opportunity out there though.  Seems to be a bipartisan effort, who can argue the law has some space that doesn’t make sense anymore or the country growing as a society would lead you to think some law is just not as applicable as it was meant to be at the time and conditions.  This is certainly true for the Voting Rights Act of 1965 as proven by the Supreme Court in 2013 where the court ruled a portion the ’65 Voters Act was no longer true and would burden the states.  The court ruled that voting jurisdictions with historical discrimination would not have to get federal approval to change voting laws Shelby County v. Holder, 133 S.Ct. 2612 (2013).  This lead to states enacting voter ID laws and Ohio allowing “voter purge” which in a nutshell could remove your registration after 6 years of no activity. 

What say you? 

• Why do you think focus has shifted since 1998 when statutory override was common? 

• The article suggests passing an override isn’t enough, Westlaw and Lexis don’t pick them up.  Does the Government create an office to “wrong the rights” and manage a program? 

• The Brown Part of the website lists more opportunities for statutory override, browse and give a quick thought on something that interests you

• https://theintercept.com/2020/11/24/congress-override-supreme-court/     (the white pages of the website) 

• Westlaw: 127 S.Ct. 2162 

• Westlaw: 133 S.Ct. 2612

• https://theintercept.com/2020/11/24/congress-override-supreme-court/     (the brown part of the website at part 2, Civil Rights, Voting Rights)

WHAT IS...Dual Sovereignty Doctrine.

  

 

 

Terrance Gamble was pulled over by police for having a faulty headlight. Gamble was driving while being a felon. The police officer smelled marijuana and had probable cause to search the vehicle. From the search, the officer discovered both marijuana and a handgun. Under Alabama’s felons-in-possession-of-a-firearm statute Ala. Code § 13A-11-72 a felon is forbidden from possessing a firearm. Gamble was tried in Alabama state court where he pleads guilty to the offense and was sentenced to one year in prison. 

 

Federal prosecutors indicted Gamble for the instance of possession under federal law. Gamble moved to dismiss due to being in violation of double jeopardy under the 5th amendment. The motion was denied under the dual sovereignty doctrine. The dual sovereignty doctrine concludes that two offenses are not the same offense if they are prosecuted by different sovereigns. Gamble pleaded guilty to the charges from the federal prosecutor with plans to appeal. He is sentenced to four years in prison.

 

Gamble appealed the court’s decision and eventually, the Supreme Court agrees to hear the case.  He appeals on the grounds of double jeopardy. The court declined to overturn the longstanding dual sovereignty doctrine. They upheld the doctrine on a 7-2 vote. The court argues that this doctrine is not an exception to double jeopardy right put forth by the 5th amendment but actually follows the text of the 5th amendment. 

 

Double jeopardy is broken down as the protection of individuals from being tried twice for the same offense. The court defines offense by law. The law is defined by the sovereigns. This opens up the possibility of being tried in federal court and state court for similar offenses. 

 

There is an implication about how this could apply to President Donald Trump and other members of his campaign who are under investigation for alleged criminal conduct. As the President, he is able to pardon himself for any federal crimes before he leaves office. He could also pardon others who allegedly committed crimes that may be connected to his campaign. With the dual sovereignty doctrine in place, this means that the states could still try the President for any of the crimes allegedly committed in the state. 

 

 

Questions: 

Do you think the dual sovereignty doctrine undermines the purpose of double jeopardy?

 

Is this doctrine good or bad public policy? 

 

https://www.westlaw.com/Document/N079B9A10151611E5BE6FD02421F0EE20/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

 

https://1.next.westlaw.com/Document/I7a1702ec90fb11e9a76eb9e71287f4ea/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)

 

https://www.nbcnews.com/politics/supreme-court/supreme-court-declines-change-double-jeopardy-rule-case-manafort-implications-n1014771

 

 

 

 

The Disagreeable Stalker

 

The Disagreeable Stalker

A Kanab City Council meeting was held at the City Library last year to hear comments on a water service agreement with Red Sands LLC, the mining company was looking to extract sand from nearby state lands to be shipped to northeastern Utah oil fields for hydraulic fracking operations. The topic was obviously controversial for many in attendance.  At the back of the line waiting a turn to speak were William James owner of Dreamland Safari Tours, and former Utah State Rep. Mike Noel, the head of Kane County Water Conservancy District and supporter of the project.  The two were fighting over who was going to be the last in line to speak [1].

The argument became heated as they exchanged words with Noel shouting that James was, “a worthless piece of garbage” [2]. City police officer Clinton Brinkerhoff interrupted their argument and ask that they both leave the building.  Noel left but James chose to stay and was booked for “intentionally being a nuisance” and after paying $1,030 in bail money was released the next day [1].

Mike Noel decided to obtain a stalking protective order after the dispute. Under Utah § 78B-7-701 Ex parte (for the benefit of one party) civil stalking injunction, an alleged stalker must engage in such conduct as “acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person’s property” on at least two occasions. Noel was able to obtain the injunction based on the behavior demonstrated by James at the City Council Meeting where he was arrested for being disorderly, and his disagreeing tone at a prior meeting.  [2].

Noel commented, “I’m fine. I can handle myself with Will, but I am worried about my wife and her family. That’s why we did it. It’s a simple matter to just stay away from us, stay off my property.” There is no evidence that James had any contact with Noel’s wife or property. “I feel threatened by Mr. James because of his volatile temper, his use of alcohol, and his aggressive, abusive behavior toward public officials that he disagrees with [2].”

Legal fees are not a financial issue for Noel as the Kane County Water Conservancy District will contribute more than 10,000 towards his legal fees, determining it was a result of conducting district business; James has set up a GoFundMe page in order to raise money to cover his continued legal fight [2].”

James wants to be clear, “When you boil it all down, I laughed at him and I returned play in a childish game. He started the game but I did return play, so those are my faults,” James said. “I laughed at a guy in a meeting, I played a childish game of who’s going to speak last at the next meeting. [2]”

In court, James' lawyer Mary Corporon argued that her client shouldn’t be punished for his civic engagement.  “There is no form of speech more highly protected than political speech. That is how our whole government is supposed to work, and people are supposed to be able to approach their public officials at all levels of government and are supposed to be able to call them out and say, even in very stark and insulting terms, that what the public official is proposing is a bad idea, and so if the conduct here is in fact a violation of the [stalking] statute ... it’s unconstitutional to restrict that kind of public speech [2].”

Question: Many states have enacted stalking statutes, primarily to address domestic disputes where one spouse has physically harmed or threatened another. Should stalking injunctions be used only where the stalker has engaged in or threatened physical violence?  What is your reasoning?

[1] https://www.stgeorgeutah.com/news/archive/2019/07/20/ajp-kanab-city-council-meeting-ends-when-local-tour-guide-refuses-to-give-up-the-last-word/#.X7qZH8hKibh

[2] https://www.sltrib.com/news/environment/2020/11/15/ex-lawmaker-mike-noel/

 

Who decides when no one can decide?

 

(https://filmdaily.co/news/electoral-map-memes/)

 

While the debate over the relevance of the electoral college is a hot topic, it’s not one that impacts our current election. We are stuck with the system we have, at least for this presidential election. All states but two are a winner take all format. What this means is if the popular vote of a state goes to a candidate, all of the electoral votes also go to that candidate, regardless of the percentage won in the popular vote. A close finish is not uncommon, nor is a recount when the race is a close one. But what does that look like weeks after November 4^th when everything is supposed to be settled?

The election is done but no one has conceded a loss. Lawsuits have been filed alleging voter fraud, that observers were not allowed to view the processes, that deadlines were illegally extended, that counts were stopped and others continued [1]. This process continues and now here we are on December 14^th 2020. It’s the big day. The day the electoral college is supposed to vote their state’s results [2]. Luckily for the American people, in July of this year a case was decided in the Supreme Court - Chiafalo v. Washington [3] which decided that “faithless electors” could face penalties. “Faithless electors” are electors which cast their states electoral votes against the wishes of their state. For example, Utah had 58% of the popular vote for Trump but if our 6 electors decided to vote for Kayne West, they could be held legally liable, which didn’t used to be the case. 

This is helpful if a state isn’t being contested, but what about a state that is still involved in a lawsuit over results? If the results are still being contested, what happens? Many states have outlined a process to decide what happens, which leaves the decision to Congress [4]. It’s largely up to the individual members of the state’s congress to decide how to submit their electoral votes at that point. They can consider a variety of aspects including the popular vote, the current litigation, and their personal viewpoints.

Q - What would be the best choice if you were in state congress and got to decide what happened your state electoral college votes and why would you choose that? (Some options might be to go with the current popular vote standings, ask the courts to decide the next steps, delay a decision until all pending litigation is completed, etc)

 

Additional, interesting reading for anyone curious about the process:

https://guides.loc.gov/federalist-papers/full-text#TheFederalistPapers-68

https://www.latimes.com/politics/story/2020-07-06/supreme-court-electoral-college-states-voters

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[1] https://time.com/5908505/trump-lawsuits-biden-wins/ (2020)

[2] https://crsreports.congress.gov/product/pdf/IF/IF11641 (2020)

[3] Chiafalo v. Washington, 140 S. Ct. 2316 (2020)

[4] https://www.archives.gov/electoral-college/faq#missdeadlinerecount (2020)

Suits, Suits, and more Suits....

 Suits, Suits, and more Suits…..

Former Vice President Joseph R. Biden secured 273 votes on November 7, 2020, after Pennsylvania put him over the threshold of 270 electoral votes needed to win the Presidency. This election year was like no other in history. With a pandemic raging across the nation, there was a record-setting voter turnout with more than 145 million ballots cast, despite voting challenges centered around social distancing. Another unusual circumstance is President Trump has refused to concede. A large majority of Republicans declined to offer the customary statements of goodwill for President-elect Joseph R. Biden, which has been standard after the American presidential contest. Following the election results, President Donald Trump’s lawyer, Rudy Giuliani, indicated the electoral voting system in Pennsylvania was fraudulent.

Federal and state courts saw nearly a dozen new lawsuits filed in Pennsylvania, Nevada, Georgia, and Michigan to halt the vote-counting process or disqualify ballots. In some of these states, a winner has not been called or the chances of winning were slim for President Trump.

Pennsylvania

The legal battles started before Election Day in Pennsylvania. However, election officials carried out their duties, while facing attacks on the integrity of the count by President Trump. The following are a few of the lawsuits filed in Pennsylvania by the Trump campaign:

 

1.       Pennsylvania extended the ballot receipt deadline to November 6, 2020. State Republicans appealed the case to the US Supreme Court twice. The first time, it was not successful, the second time, the court declined to make a decision before the election, however, left the option open to hearing after the election.  [1]

2.       The Trump campaign argued they weren’t being allowed to monitor the tallying of mail-in votes. US District Court Judge, Paul Diamond, insisted the two sides come together and ruled in favor, allowing campaign officials to observe the counting process (from a six-foot distance). He suggested each party be allowed 60 observers inside a hall in a downtown Philadelphia convention center, where the votes were being counted. [2]

3.       A presiding judge ordered all counties to segregate ballots that did not include proof of identification if it was not on their initial ballots. The ballots without the supplemental identification could not be counted until approved by the court.[3]

4.       The Trump campaign and the Republican National Committee filed a suit to stop the process of counting ballots which were mailed because the ballots were not in the secrecy envelopes, also known as naked ballots, and therefore not complying with requirements. The state Supreme Court ruled against counting naked ballots, changing that would be up to the state legislature. [4]

 

 

Q1: In the lawsuit where 60 observers were allowed to watch poll watchers, the observers stated they were not close enough to check for irregularities, such as ensuring signatures match, dates were accurate and the secrecy envelope was used properly. Would a lawsuit be able to remedy this claim?

 Q2: Do you feel any of these lawsuits would change the outcome of the election?

Q3: What do you think will happen with these lawsuits?

https://www.scribd.com/document/482914771/20201104152024523-20-542-20-574-PA-Mot-to-Intervene#from_embed

https://news.bloomberglaw.com/us-law-week/trump-sues-to-halt-philadelphia-count-without-gop-observers-1

https://www.newsweek.com/what-segregated-ballot-1545638

https://www.vox.com/21452393/naked-ballots-pennsylvania-secrecy-envelope

https://www.nytimes.com/2020/11/06/us/politics/election-courts.html

Rent Reckoning: Coronavirus and Eviction Moratoriums

Rent Reckoning: Coronavirus and Eviction Moratoriums

    This year has been a year like no other. As a pandemic has ripped across the world, an important issue that people are facing is whether or not they can afford their essential monthly expenses. With people losing their jobs and then having to deal with significant backups trying to get unemployment benefits, it has been an immense struggle for millions of Americans to make ends meet. Early in the pandemic, the federal government ordered a temporary moratorium on evictions; however, that moratorium, written into the CARES Act, expired in July. In response to that expiration, many states extended their own moratoriums on evictions. In addition the the response from various states, the Centers for Disease Control and Prevention issued an agency order that temporarily halted residential evictions starting September 4, 2020 through December 31, 2020 [1]. This order has become a source of contention throughout the United States.

    Currently, there is a lawsuit that has been brought to the U.S. District Court for the Northern District of Georgia. In this lawsuit, the New Civil Liberties Alliance, joined with the National Apartment Association, is suing the U.S. Department of Health and Human Services, the C.D.C., and the respective Secretary and Acting Chief of Staff of those agencies. The C.D.C's order states that "a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order" [1]. Richard Lee Brown, as with many other landlords across the United States, intends to evict his current tenant. Under the C.D.C's order, his tenant is a "covered person." His argument is that he has provided everything that he is responsible for per their contract and is suffering significant economic damages, so he should receive the unpaid rent and be able to replace the tenant with one who will actually pay their rent [2]. He continues to allege that the C.D.C. "exceeded its statutory and regulatory authority by issuing the halt in residential evictions order" and that the order violates the Supremacy Clause of the U.S. Constitution [2]. 

    The District Court heard this case on October 20, 2020 and could potentially issue some sort of injunction in the coming weeks. Such a decision could affect millions of people as studies have shown that more than 6 million households were unable to make their rent or mortgage payments in September [3]. Various state courts have already had similar complaints filed. The Texas Supreme Court recently clarified that landlords can still pursue evictions by challenging the C.D.C. order. 

Questions

Do you think that the CDC should have the ability to issue declarations halting evictions? 

Is the C.D.C's order a violation of the Supremacy Clause?

What do you think will happen in these various lawsuits?

______________________________

[1] https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19

[2] https://nclalegal.org/wp-content/uploads/2020/09/Brown-v.-Secretary-Alex-Azar-et-al._2020.09.08-Motion-for-TRO-or-preliminary-injunction.pdf

[3] https://www.bloomberg.com/news/articles/2020-10-22/landlords-launch-legal-attack-on-cdc-eviction-ban?utm_campaign=news&utm_medium=bd&utm_source=applenews

 

Monopoly

by Missy

 

[1]

On October 20, the Department of Justice (DOJ), along with 11 other states, submitted a complaint against Google for alleged violation of antitrust laws.  The complaint[2] is 64 pages long. To summarize the complaint, according to the DOJ,

the Complaint alleges that Google has unlawfully maintained monopolies in search and search advertising by:

·          Entering into exclusivity agreements that forbid preinstallation of any competing search service.

·          Entering into tying and other arrangements that force preinstallation of its search applications in prime locations on mobile devices and make them undeletable, regardless of consumer preference.

·          Entering into long-term agreements with Apple that require Google to be the default – and de facto exclusive – general search engine on Apple’s popular Safari browser and other Apple search tools.

·        Generally using monopoly profits to buy preferential treatment for its search engine on devices, web browsers, and other search access points, creating a continuous and self-reinforcing cycle of monopolization.

These and other anticompetitive practices harm competition and consumers, reducing the ability of innovative new companies to develop, compete, and discipline Google’s behavior. ^[3]

Google has not officially responded at the time of this writing. However, on a Google blog post, Kent Walker, Google’s SVP of Global Affairs, published that the complaint was flawed and would not help consumers in any way. He further stated that what Google is doing with their products is like having a product at the store placed at eye level on a shelf. The blog contained images and instructions that show consumers how to change Google as the default search on many devices. In addition, Kent asserts that “This lawsuit would do nothing to help consumers. To the contrary, it would artificially prop up lower-quality search alternatives, raise phone prices, and make it harder for people to get the search services they want to use.”[4] He argues that the DOJ completely missed the mark. “The bigger point is that people don’t use Google because they have to, they use it because they choose to.”[5] On that last point, I personally agree that I do choose to use Google search.

Over the past several years, the last four devices I have been using on at least a weekly basis, all came with a search engine other than Google as the default. Admittedly, inertia did have an affect, and I did start using the default search engines. However, I changed all four default search setting to Google within less than a week, after I found the other search engines to be far inferior to Google. 

Regardless of my personal actions, the plaintiffs assert that consumers will not change the default on a device, and this further contributes to Google's monopoly.  The plaintiffs establish the antitrust case under Section II of the Sherman Act, which reads:  “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony. . .”[6]

Monopoly is further defined as requiring:

“(1) monopoly power and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” ^[7]

Google was not always a giant. Survival of the fittest is alive and well in the free market. If you are old enough, you may remember there were other competitors in the general search industry: MetaCrawler, WebCrawler, HotBot, Excite, AltaVista, Ask Jeeves, Ask.com, Lycos, MSN Search,  AOL Search, Infoseek, Go.com, Netscape, Dogpile, and All The Web.[8]  Today, the main competition remaining is Google, Bing (owned by Microsoft), Yahoo (the complaint states they pay Bing for the use of Bing search results),[9] and DuckDuckGo. (DuckDuckGo is distinguished from the other search engines because they offer more privacy settings such as not collecting personal information or participating in web tracking.)[10] 

Interestingly, the complaint uses two Google competitors, Bing and Amazon, to demonstrate Google’s monopolistic power over the two. However, Amazon and Bing are not doing anything much different from Google; Amazon has its own exclusive apps and has Bing preinstalled on its devices.[11] The complaint also refers to the Microsoft antitrust case from a few decades ago. Stephen Houck, formerly the Chief of the Antitrust Bureau in New York’s Attorney General’s Office, who served as lead trial counsel in the case against Microsoft,^[12] points out the Google complaint neglects some main differences between the Microsoft case when it tries to align the two for comparison. Houck’s states that Google’s products are free, and Microsoft was charging high monopoly prices for Windows. He further uses the example of Apple in the Microsoft case and stated that Microsoft coerced Apple to use their browser instead of a competitor, when Apple wanted to use the competitor. He goes on to state that the court said it was an interim threat.[13] As stated in the complaint, Google incentivizes distributors, but there was no indication of any type of threat.

Regardless of how you view the Google case, in looking at antitrust in general, how should it be determined if distributors, advertisers, and consumers are choosing a product because of its superior quality, business acumen, and advantage in innovation rather than illegally dominating the market? What rights does a company have to protect its intellectual capital without running afoul of antitrust? If other competitors are doing the same thing, then is it just a question of size?

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[1] http://www.fubiz.net/2013/08/01/google-monopoly/

[2] https://www.justice.gov/opa/press-release/file/1328941/download

[3] https://www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws

[4] https://blog.google/outreach-initiatives/public-policy/response-doj

[5] EBID

[6] 15 U.S.C. § 2 (2000).

[7] https://www.justice.gov/atr/competition-and-monopoly-single-firm-conduct-under-section-2-sherman-act-chapter-1#:~:text=I.&text=Section%202%20of%20the%20Sherman%20Act%20makes%20it%20unlawful%20for,foreign%20nations%20.%20.%20.%20.%22 (Emphasis added.) United States v. Grinnell Corp., 384 U.S. 563, 570­71 (1966)

[8] https://searchengineland.com/a-look-back-at-the-old-search-engines-25766

[9] https://www.justice.gov/opa/press-release/file/1328941/download at paragraph 23

[10] https://duckduckgo.com/

[11] https://www.justice.gov/opa/press-release/file/1328941/download at paragraph 130

[12] https://www.competitionpolicyinternational.com/a-modest-proposal-for-antitrust-enforcement/

[13] https://www.youtube.com/watch?v=ibcII48xDE4