Daily Archives: June 24, 2017

A number of sane people around the commentariat have been up in arms over the recent decision handed down by the Supreme Court in Murr v. Wisconsin. And with very, very good reason. Weve dealt with this case here before as its played out through the lower courts, but as a refresher it deals with the situation encountered by Donna Murr and her siblings in Wisconsin. The family owned two small parcels of land along the St. Croix River. They had a cabin on one of the lots and the adjoining property was left vacant as an investment. But when they attempted to finally sell the vacant lot in 2004 they learned that the state had changed the rules on them, making it impossible to sell the land to anyone other than the county unless they combined the properties and relinquished the entire package.

The property in question had been valued at $400K. The county the only entity legally entitled to buy it offered them $40K.

Because the state, through changes in laws which did not apply when the family acquired the land, had completely gutted its worth, the Murr family sued to be properly compensated under the Takings Clause. With this weeks decision, those hopes are dashed. Eric Boehm at Reason explains what this is doing to the rights of property owners.

When governments issue regulations that undermine the value of property, bureaucrats dont necessarily have to compensate property holders, the Supreme Court ruled Friday

The ruling could have implications that go well beyond the 2.5 acres of land in Wisconsin.

Several western states filed amicus briefs in the case on behalf of the Murr family (as did the Reason Foundation, which publishes this blog). Though states like Nevada and Arizona did not have a direct interest in the Murrs ability to sell their vacant land, they saw the case as having important implications for conflicts over federal lands.

Many state governments own contiguous lots and large bodies of water near areas owned by the federal government (military bases, national parks, etc). If those government bodies are allowed to merge contiguous lots for regulatory purposes, the federal government could impose severe restrictions on state land and wouldnt have to pay consequences, warned Ilya Somin, a professor of law at George Mason University who authored the amicus brief on behalf of those western states.

What we are seeing here is a continuation of what I still maintain is possible the worst ruling from the Supreme Court in the history of the nation, Kelo v. City of New London. That was the dark day when the Supremes ruled that the idea of public use in the Takings Clause could be reinterpreted into a Reverse Robin Hood scenario by defining it as the far more ambiguous public benefit. When that case was decided in 2005 the principal dissent was written by OConnor, but in a separate dissent, Associate Justice Clarence Thomas wrote the following:

Something has gone seriously awry with this Courts interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.

This ruling is yet another weakening of the Takings Clause. And the reason I say this is a continuation of Kelo is that you need only look at who is voting on these rulings. In Kelo, the 5-4 decision was delivered by Stevens, Souter, Ginsburg and Breyer with the tie-breaking vote cast by Kennedy. Now, In Murr, the 5-3 decision came from Breyer, Ginsberg, Kagan, (who replaced Stevens under Obama) and Sotomayor (who replaced Souter under Obama) with both the tie-breaking decision and the written opinion coming once again from Kennedy. Anyone seeing a pattern here?

It was 5-3 because Gorsuch wasnt involved with the original hearing and didnt vote. But even if he had, the Fifth Amendment still would have lost 5-4 yet again. Its not enough just to keep hold of the seat that Justice Scalia occupied. Kennedy is unreliable in too many instances when given a choice between more power for the government over the individual or less. The other four liberals are lost causes, apparently never having seen a case of bigger government which they couldnt celebrate. We need a real majority on the Supreme Court with conservative, small government principles in their hearts or these erosions of fundamental rights will continue.

Read more from the original source:
In Murr V. Wisconsin, SCOTUS deals another blow to the Fifth Amendment - Hot Air

Former Pennsylvania Attorney General Kathleen G. Kane, free on bail while she appeals her perjury conviction, invoked her Fifth Amendment right not to testify this week in a court hearing in which an accused Pittsburgh killer is challenging wiretap evidence against him.

In a complicated pretrial legal fight, Price Montgomery, an alleged drug dealer charged with fatally shooting a witness, is seeking to exploit a feud between Kane and one of her top deputies that broke out in 2014, at the same time the Attorney Generals Office had tapped Montgomerys cellphone.

Kane went on a vacation to Haiti at that time, and because of the feud had refused to sign routine paperwork authorizing deputy Adrian King to make key decisions in her absence. Nonetheless, King approved the wiretap, using an autopen to add Kanes signature to the document; the recorded conversations allegedly implicate Montgomery.

Now, Montgomery and his codefendants want the wiretap evidence barred on grounds that the tap was approved without proper legal authority.

The hearing showed howKanes tumultuous tenure as attorney general continues to have a ripple effect, almost a year after she stepped down.

Kane, who has kept a low profile since her conviction, took the stand briefly Tuesday in federal court in Pittsburgh only to decline to answer questions, according to several courtroom observers. King had testified the day before, saying that Kane approved the wiretap in a call from the airport as she left for her trip. King provided cellphone records and his notes from the call to back up his account.

King was a key witness against Kane in her criminal case. The former attorney general took note of that in explaining why she took the Fifth.

I know how this works: I say one thing. Adrian King says another. I get charged with perjury, Kane told federal prosecutors a few days before the hearing, according to defense attorney Michael DeRiso, who represents one of Montgomerys codefendants. He said prosecutors had shared notes of Kanes remarks with them.

Kane could not be reached for comment; a call to her home this week went unanswered.

Kanes lawyer for the hearing, Thomas J. Farrell, refused to say whether he was her lawyer. Federal prosecutors also declined comment. U.S. District Judge Mark R., Hornak will rule on the suppression motion in the fall.

Montgomery, 36, is charged with the Aug. 22, 2014, killing of Tina Crawford, 34, also of Pittsburgh, who was shot 10 times at her home as she was leaving to talk with federal prosecutors. Her mother was wounded in the same attack.

Two months before the shootings, Montgomery had been arrested on drug-dealing charges after police seized 1,500 bricks of heroin, more than $100,000, and 16 handguns, shotguns, and rifles in a raid.

Though the wiretap was placed by the Attorney Generals Office, federal prosecutors are pursuing the case. DeRiso said that knocking out the wiretap evidence would undermine the drug charges, but was uncertain about its impact on the charge involving the killing of the witness.

In legal papers defending Kanes right to invoke her constitutional right against self-incrimination, Farrell noted that even innocent people may cite the Fifth Amendment so as not to provide any information to authorities.

He also noted that Kanes conflict with King was explored during the 2016 trial in Montgomery County that ended with her conviction on perjury and obstruction charges.

A jury found that she lied under oath in denying that she had unlawfully leaked confidential investigative material to a newspaper in a bid to embarrass a political enemy. King, now a lawyer in Philadelphia, was a key prosecution witness, testifying that he had warned Kane not to leak material. His relationship with Kane grew chilly after he provided that advice.

Kane was sentenced to serve 10 to 23 months in jail. She has appealed her conviction to Superior Court.

Published: June 24, 2017 11:32 AM EDT

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Continued here:
Former AG Kane takes Fifth in wiretap case - Philly.com - Philly.com

Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Courts contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.

Friday, inMurr v. Wisconsin, Thomas suggested that the court shouldreconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the courts doctrine and the original meaning of the Fifth Amendments takings clause. He wrote:

I join THE CHIEF JUSTICEs dissent because it correctly applies this Courts regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a general rule that if regulation goes too far it will be recognized as a taking. But we have since observed that, prior to Mahon, it was generally thought that the Takings Clause reached only a direct appropriation of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a practical ouster of [the owners] possession, Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaports paper:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amars theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitutions original meaning does not apply to state regulatory takings.

Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).

If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure and constitutionally sound foundation.

Continue reading here:
Should regulatory takings doctrine be reconsidered from the ground up? - Washington Post

The Supreme Court will wrap up scheduled decisions from its current term on Monday morning. Heres a quick look at the six cases that will be announced by the Court on June 26, 2017.

The most-publicized decision will be Trinity Lutheran Church of Columbia v. Comer, which was heard on April 19. The Justices might answer the question of whether religiously affiliated schools can be constitutionally denied equal access to government benefits, even if the benefit has nothing to do with matters of faith.

The case is about a program in Missouri that provides rubberized material for school playgrounds, made out of old tires. Missouris constitution bars parochial schools from such public benefits, explicitly because of the Missouri constitutions Blaine Amendment, first adopted in 1875. The Blaine amendment says, no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination or religion.

Trinity Lutheran qualified for the playground grant, which was competitive, scoring very highly in a neutral grading process. But the state disqualified the church as a grant recipient because Trinity Lutheran was a church.

The church appealed to the Supreme Court, arguing that no public benefit could be further removed from the states anti-establishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose.

One late factor in the case was a decision by the state of Missouri in April to start a new cycle of the grant program where private schools can apply and receive funding. That raises the question of the existence of a live controversy in front of the Court to decide.

The other case that could generate some publicity is Hernndez v. Mesa, which was heard on February 21. The case is an appeal from the family of a boy from Mexico who was fatally shot by a U.S. Border Patrol officer. Sergio Adrian Hernandez Guereca, 15, died in 2010 as he stood on Mexican soil by a border officer who fired his gun while on United States soil in Texas. The agent claimed Hernandez and others were throwing rocks at him.

Hernandezs family sued the agent for damages, but in 2015 the Fifth Circuit appeals court said the family had no standing to sue because the teen was a Mexican citizen and not protected by the Fifth Amendment under its Due Process clause or by the Fourth Amendment. The full appeals court hadunanimouslyruled in favor of the agent.

The Supreme Court took the appeal and also added a question about determining if the parents had a constitutional right to sue a Border Patrol officer.

The remaining cases include two immigration-related decisions. In Jennings v. Rodriguez, the Court will consider if immigrants who are legally detained by government officials should qualify for a bond hearing. There wasnt a clear consensus of how the Court would act after arguments and the decision could be deadlocked or remanded to a lower appeals court, some Supreme Court observers say.

In Sessions v. Dimaya, the Court will consider if a non-citizen immigrant convicted of an aggravated felony can be deported under the Immigration and Nationality Act. The act defines an aggregated felony as a crime of violence. A similar term, violent felony, was found constitutionally vague in another Supreme Court decision, and the Court will decide if the words are too similar to allow Dimayas removal under the act.

The remaining cases on Monday include a case about securities fraud class action lawsuits, and a dispute over alleged inadequate representation of a client by an attorney.

Filed Under: Supreme Court

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Last day of Supreme Court decisions features religion, immigration cases - Constitution Daily (blog)