Monthly Archives: February 2021

Susan McCord|Augusta Chronicle

A Blythe city councilmans vote-buying case has been bound over to the Georgia Attorney General.

State Elections Board Chief InvestigatorFrances Watson told the board Wednesday that Daniel Martin was seen at a Blythe convenience store buying a vote for mayoral candidate Phillip Stewart.

Martin was seen purchasing a six-pack of Mikes Hard Lemonade and a pack of cigarettes for Jacob Odom, who was under 21 at the time, Watson said.

Martin is accused ofbuying Odom the items in exchange for a vote for Stewart in that days election on March 20, 2018, shesaid.

When the store clerk informed Blythe police, they located Odom in Martins vehicle.

Martin was indicted by a Richmond County grand jury for vote-buying on March 27, 2018.

Martin did not participate in the Zoom meeting Wednesday due to pending criminal matters, an investigator stated.

Attorney Rachel Ray spoke on Martins behalf, saying the store clerk, Judy Cordova conveniently failed to report she was in a relationship with one of the same police officers until a later trial and that Odoms testimony continued to change.

Ray attributed the lack of progress on Martins indictment was because the evidence is so weak and lacking.

Augusta Circuit District Attorney Jared Williams office recently referred Martins indictmentto the attorney generals office to be referred to another judicial circuit because Williams was Martins attorney before winning the Nov. 3 election.

Martiniwon a three-way race for city council in November.

With the 2018 indictment pending, Martin would challenge Cordova in a May 2018 special city council election that ended in a tie.

During the runoff campaign, Cordova and others criticized Martins plethora of social media posts referencing white genocide a Muslim takeover and other statements they deemed offensive. Cordova won the runoff.

At the later trial was held on former councilwoman Cynthia Parhams challenge of her four-vote loss to Stewart for mayor based on the vote-buying allegation and several other challenged votes.

While testifying, Martin invoked his Fifth Amendment right against self-incrimination numerous times.

Stewart, represented by former U.S. attorney Ed Tarver, prevailed in the challenge and the verdict was upheld by the Georgia Supreme Court.

At the bench trial, visiting judge Lawton Stephens said Parham failed to prove a sufficient number of illegal votes.

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Blythe vote-buying case referred to Georgia Attorney General - The Augusta Chronicle

The former husband of an events planner who appeared on TVs The Real Housewives of New York has pleaded the Fifth amid claims by his kids former au pair that he secretly recorded her for nearly two years catching her in the buff and between the sheets.

Wall Street investor Bennett Egeth the ex of RHONYs Jennifer Gilbert was sued by live-in nanny Daniela De Los Rios in December after the au pair allegedly discovered a camera secretly recording her in the home.

Egeth has been charged with unlawful surveillance in a pending related criminal case.

Egeth is now assert[ing] his privileges under the 5th Amendment of the United States Constitution due to the current prosecution in New York County Supreme Court relative to the facts in this case, the defendant wrote in an answer to De Los Rios lawsuit Thursday.

The Fifth Amendment gives a person the right not to say anything to authorities or the court on the grounds he might incriminate himself.

Egeth is asking a judge to toss out De Los Rios claims against him, court papers say, without going into detail.

His accusers lawyer is Charles Harder, who helped Hulk Hogan win a $140 million jury verdict over the publication of a sex tape nearly five years ago.

De Los Rios alleges that she lived in the estranged couples Tribeca house starting Jan. 18, 2019 and discovered a camera concealed in a digital clock in her room Aug. 26, 2020. She said she would sleep naked in the room and even had sex with her boyfriend there all of which could have been captured on camera.

She reported what she found to the police, who arrested Egeth a few days later. She claimed that both Egeth and Gilbert harassed her after reporting it.

Gilbert, who appeared on Season 3 of RHONY, was named in the suit but has not been criminally charged. She told Page Six in December that she had been separated from Egeth for seven years and divorced him last spring.

Harder said in a statement Friday, We look forward to seeing Bennett Egeth prosecuted to the fullest extent for his alleged crimes, which are horrific.

We also will be seeking tremendous damages against him, including punitive damages, in our civil action, Harder said.

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Ex-husband of 'RHONY' events planner pleads Fifth in Peeping Tom suit - Page Six

The U.S. Court of Appeals for the Ninth Circuit has declined to rehear the high-profile Juliana v. United States case, which has been followed by Environmental Law Monitor here, here, and here. Last January, the Ninth Circuit dismissed the case for lack of Article III standing, and last week, a little over a year after its decision ordering dismissal of the case, the court declined the plaintiffs motion for a rehearing.

The Juliana plaintiffs, a group of 21 then-minors, filed suit in the U.S. District Court for the District of Oregon in 2015, alleging the government violated their constitutional rights, specifically a claimed right under the Due Process Clause of the Fifth Amendment, to a climate system capable of sustaining human life. Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). Their complaint alleged that the governments continuing permission, authorization, and subsidization of fossil fuel use, despite being long-aware of its risks, caused various climate-change-related injuries to the plaintiffs, spanning from psychological harm to impairment of recreational interests, exacerbated medical conditions, and property damage. Id. at 1165.

The government first moved to dismiss the plaintiffs claims, but in April 2016, the district court denied the motion, finding that the plaintiffs had standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth Amendment due process right to a climate system capable of sustaining human life, which the court defined as one free from catastrophic climate change that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planets ecosystem. Id. The court also found that the plaintiffs had stated viable due process and public trust claims grounded in the Fifth and Ninth Amendments. Id.

Days before the case was set to proceed to trial in October 2018, the government moved for summary judgment and judgment on the pleadings. The district court granted the governments motions on the Ninth Amendment claim and part of the equal protection claim. However, the court maintained that the plaintiffs had standing to sue. An interlocutory appeal ensued.

In its January 2020 decision, the Ninth Circuit noted that Article III standing requires a plaintiff to have (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable decision. Id. at 1168, citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693 (2000); Jewel v. NSA, 673 F.3d 902, 908 (9th Cir. 2011). The court held that the district court had correctly found the injury requirement met, as at least some of the plaintiffs claimed concrete and particularized injuriesfor instance, one plaintiff claiming that he was forced to evacuate his coastal home multiple times due to flooding. Id. The court further held that the district court correctly found the causation element satisfied, for purposes of summary judgment, as the causal chain was sufficiently establishedplaintiffs alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. Id. at 1169.

However, the court disagreed with the district courts analysis as to whether the plaintiffs claimed injuries were redressable by the court. The court noted that plaintiffs did not claim that the government had violated a statute or regulation, or denied a procedural right, nor did they claim damages under the Federal Tort Claims act. Id. Rather, the plaintiffs sole claim was that the government has deprived them of a substantial constitutional right to a climate system capable of sustaining human life, for which remedial declaratory and injunctive relief was sought. Id. The court noted that not all claims were redressable by a federal court, and therefore the inquiry as to redressability was two-fold, in that plaintiffs must establish that the relief is substantially likely to redress their injuries, and within the courts power to award. Id.

With regard to declaratory reliefthe plaintiffs request for a declaration that the government was violating the constitutionthe court held that this alone was not substantially likely to mitigate the plaintiffs asserted injuries. Id. at 1170. With regard to injunctive reliefplaintiffs request for an injunction requiring the government to cease permitting, authorizing, and subsidizing fossil fuels, and also prepare a plan to draw down harmful emissionsthe court found that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs requested remedial plan. Id. at 1171. Hinging its conclusion on the doctrine of separation of powers, the court found that the plaintiffs request would require the judiciary be policymaker, infringing on the roles of the executive and legislative branches. Id. While the court found that the plaintiffs had made a compelling case that action was needed, their case must be made to the political branches, or to the electorate: [t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes. Id. at 1175.

In March 2020, the plaintiffs filed a petition for rehearing en banc. Amicus briefs were filed by members of Congress, and experts in the relevant fields of constitutional law, climate change, public health, and similar, but last week, on February 10, 2021, the Ninth Circuit upheld the January 2020 decision dismissing the case.

Our Childrens Trust, the non-profit law firm representing the plaintiffs, has released a statement that it plans to take the case to the U.S. Supreme Court, which is no stranger to the case, having ruled on prior motions to stay (here and here), but the firm has also asked the Biden administration Department of Justice for a meeting to discuss settlement options.

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Ninth Circuit Upholds Dismissal of Kids Climate SuitHeaded to the Supreme Court? - Lexology

Law360 (February 22, 2021, 9:46 PM EST) -- The U.S. Supreme Court declined to breathe new life into a $100 million proposed class action leveled against the U.S. Patent and Trademark Office over fees the office collects on patents that are later invalidated.

Christy Inc.'s petition for certiorari, among dozens denied in Monday's Supreme Court order list, argued that the patent office violated the Fifth Amendment when it mostly invalidated the Oklahoma company's vacuum cleaner patent following a challenge from Black & Decker Inc. without refunding the fees the patent office initially charged Christy for those patents.

Christy's 2018 lawsuitagainst the government had come less than a month...

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Justices Won't Hear Fight Over USPTO Fees On Axed Patents - Law360

A Florida woman who threatened to shoot members of the FBI during an ongoing investigation of her ties to the January 6 Capitol insurrection was released on a $50,000 bond, according to her federal court docket in Florida's Southern District Court.

Suzanne Kaye, 59, was charged with one count of knowingly and intentionally transmitting in interstate commercea communication containing a threat to injure a person. Her bond conditions state that she cannot possess any firearms and must allow agents to periodically examine her home without prior notice to ensure she doesn't have any weapons

According to court filings, the FBI received a tip in mid-January suggesting she was present in the US Capitol during the January armed insurrection. When FBI agents reached out to Kaye, she denied being present in Washington, DC, at the time but said she knew of people who did travel there and agreed to an interview with agents.

Just three days after the initial call with FBI agents, however, a sworn affidavit says Kaye posted a video to her non-personal Facebook page, entitled "ANGRY Patriot Hippie," with a caption of "f--- the FBI!!"

In the video, she explained that she had been contacted by FBI agents but would not speak to them any further without an attorney present. She continued to lambaste the agency and said she would exercise her "second amendment right to shoot your f------ a-- if you come here." Kaye also posted the threatening video to her personal TikTok and Instagram accounts.

According to a sworn affidavit from an FBI special agent, Kaye's criminal record includes a violent history. The Palm Beach Sheriff's Office arrested Kaye in 2010 for domestic battery. The same sheriff's office arrested her once again a decade later in 2020 for aggravated assault and possession of a deadly weapon without intent to kill and battery, but all of her charges were dropped and abandoned.

Kaye's court docket shows that she signed a statement invoking the Fifth Amendment and will not be answering any questions from investigators in this case. Her lawyer later filed a demand to find out the names of any expert witnesses the government plans to introduce in the trial.

Kaye's next court date has not been scheduled.

Over 250 people have been arrested for their involvement in the Capitol siege in early January and the FBI is still seeking information to identify many of the Capitol rioters.

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Florida woman charged over threats to FBI asking about Capitol siege - Insider

RELIST WATCH ByJohn Elwood on Feb 18, 2021 at 4:39 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

Even after nearly a month off since the last installment, this weeks round-up is going to be abbreviated because of the press of business. There are about 489 cases that have been scheduled for resolution at this Fridays conference. Only four of those cases are new relists. They concern two basic issues.

The first three cases All Saints Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, 20-534, The Episcopal Church v. The Episcopal Diocese of Fort Worth, 20-536, and Schulz v. Presbytery of Seattle, 20-261 are all examples of something that the Supreme Court used to see a lot of, but seem like theyve been in someone shorter supply recently: property disputes pitting a breakaway faction against a national church for control of property. These cases involve how to apply two lines of case law, both involving leading cases with Jones in the caption. Under one line of authority, exemplified by the landmark 1872 case Watson v. Jones, civil courts adjudicating church property disputes essentially defer to the highest church authorities about who owns the property. But under 1979s Jones v. Wolf, the Supreme Court, by a 5-4 vote, held that courts could adjudicate such cases applying neutral principles of law to determine which party the property deeds, statutes, and church governing documents indicated the property belonged to.

The two cases brought by Episcopal entities involve a Fort Worth, Texas, sanctuary and rectory. The Texas Supreme Court held it belonged to the withdrawing faction rather than the national organization. The Presbyterian case involves church property in Seattle, Washington apparently, the very last downtown Seattle property not occupied by a coffee shop or outdoor clothing store. The Washington Court of Appeals held that courts should defer to the Presbyterian Church U.S.A.s designee, who said the property belonged to the group still affiliated with the national organization.

The national Episcopal Church and affiliated entities explicitly say that if the Texas decision is correct, Wolf should be overruled. The petitioners in the Seattle case, the trustees of a congregation that disaffiliated from the national Presbyterian church, clearly suggest that Watson is not good law. It will be interesting to see if the Supreme Court takes up an issue that has been percolating for almost a decade. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioners in the two cases involving the Episcopal Church.]

That brings us to the second issue, which involves the Armed Career Criminal Act, a three strikes-type sentencing enhancement whose legendary ambiguity has spawned so much litigation that, as Ive observed before, it can sometimes seem as if there are more Armed Career Criminal Act appeals than there are armed career criminals. The ACCA sentencing enhancement applies only if the defendant has three predicate convictions that were committed on occasions different from one another. 18 U.S.C. 924(e)(1). The question in Wooden v. United States, 20-5279 is: When a criminal defendant commits a series of offenses sequentially such as breaking into 10 different mini-storage units one after another (which is just what petitioner William Dale Wooden did one evening) were the offenses committed on occasions different from one another for purposes of the ACCA enhancement?

Some circuits say that offenses are automatically committed on different occasions if they are separated in time by even a short interval; thus the U.S. Court of Appeals for the 6th Circuit said Wooden had 10 prior offenses committed on different occasions because he burgled (thats right, I said burgled) 10 mini-storage units in a row, and he could not have been in more than one unit at the same time. Other circuits say that the offenses have to be treated as the same occasion unless they arose under different opportunities or circumstances meaning the offenses were part of different criminal episodes.

The Wooden petition also presents a second question: whether officers who use deception to gain access to constitutionally protected areas have violated the Fourth Amendment. The police officer here asked if he could step inside Woodens home to stay warm, but his real goal was to track down a fugitive. Once inside, he found a gun that Wooden shouldnt have possessed. The 6th Circuit held that was not a constitutional violation. That arguably splits from a decision of the U.S. Court of Appeals for the 9th Circuit. [Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is counsel to Wooden. I am not involved in the case.]

Thats all for this week. Stay safe (and warm) out there!

All Saints Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, 20-534Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of petitioners in this case.Issue: Whether the Texas Supreme Courts decision awarding the sanctuary and rectory of the petitioner, All Saints Episcopal Church (Fort Worth), to a dissident faction in contravention of the will of petitioners parishioners and an express-trust provision is consistent with the free exercise and establishment clauses.(relisted after the Jan. 22 conference)

The Episcopal Church v. The Episcopal Diocese of Fort Worth, 20-536Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.Issues: (1) Whether the First Amendment requires courts to enforce express trusts in church governing documents (as some jurisdictions hold, in line with Jones v. Wolfs first safeguard), or whether state law may render such trusts unenforceable (as others hold); (2) whether the First Amendment requires courts to defer to churches on questions of polity (as some jurisdictions hold, in line with Jones second safeguard), or whether courts may apply state law to determine the structure of a church (as others hold); and (3) whether the neutral-principles approach may constitutionally be applied either prospectively or retroactively to resolve church-property disputes.(relisted after the Jan. 22 conference)

Schulz v. Presbytery of Seattle, 20-261Issue: Whether, in a dispute between a local congregation and its former denomination over ownership of property to which the local congregation holds legal title, the First Amendment permits courts to apply a rule of absolute deference to assertions of ownership by the denomination.(relisted after the Jan. 22 conference)

Wooden v. United States, 20-5279Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is counsel to the petitioner. I am not involved in the case.Issues: (1) Whether a police officers use of deception to gain entry to a constitutionally protected area violates the Fourth Amendment; and (2) whether offenses that were committed as part of a single criminal spree, but sequentially in time, were committed on occasions different from one another for purposes of a sentencing enhancement under the Armed Career Criminal Act.(relisted after the Jan. 22 conference)

Biden v. Knight First Amendment Institute, 20-197Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences)

Chipotle Mexican Grill v. Scott, 20-257Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are similarly situated for purposes of the collective-action provision of the Fair Labor Standards Act.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle]

United States v. Vaello-Madero,20-303Issue:Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income a program that provides benefits to needy aged, blind and disabled individuals in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.(relisted after the Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences)

Texas v. California, 220153Issue: Whether Californias sanctions against Texas and Texans prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders are born of religious animus and violate the Constitutions privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Dobbs v. Jackson Womens Health Organization, 19-1392Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects womens health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed underPlanned Parenthood v. Caseys undue burden standard orWhole Womans Health v. Hellerstedts balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects womens health from the dangers of late-term abortions.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Massachusetts Lobstermens Association v. Ross, 20-97Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Acts smallest area requirement, including designating ocean monuments larger than most states, by vaguely referencing resources or an ecosystem as the objects to be protected.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Harris v. Maryland, 20-101Issue: Whether, when preindictment delay has caused actual prejudice to the accuseds ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Johnson v. Precythe, 20-287Issues: (1) WhetherBucklew v. Precytheestablished a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiffs opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the states proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuits refusal to permit Ernest Johnson, after the Supreme Courts decision inBucklewwas issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

United States v. Tsarnaev, 20-443Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaevs capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaevs case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaevs trial by excluding evidence that Tsarnaevs older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Republican Party of Pennsylvania v. Boockvar, 20-542Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assemblys plenary authority to direct [the] Manner for appointing electors for president and vice president under Article II of the Constitution, as well as the assemblys broad power to prescribe [t]he Times, Places, and Manner for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Corman v. Pennsylvania Democratic Party, 20-574Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assemblys plenary authority to direct [the] Manner for appointing electors for president and vice president under Article II of the Constitution, as well as the assemblys broad power to prescribe [t]he Times, Places, and Manner for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

McCoy v. Alamu, 20-31Issues: (1) Whether a prison official is entitled to qualified immunity if he gratuitously assaults a prisoner but not every factor fromHudson v. McMillianfor when the use of excessive physical force may constitute cruel and unusual punishment favors the plaintiff, as the U.S. Court of Appeals for the 5th Circuit held here, or whether the plaintiff can nonetheless defeat qualified immunity, as the U.S. Courts of Appeals for the 4th, 6th, 9th and 11th Circuits have held; and (2) whether a prison official who assaults a prisoner without justification is entitled to qualified immunity if past precedent involved different mechanisms of force, as the 5th Circuit implicitly held here, or whether precedent concerning unprovoked assaults by one weapon can clearly establish the unconstitutionality of unprovoked assaults by other weapons, as the 4th and 9th Circuits have held.(relisted after the Jan. 15 and Jan. 22 conferences)

Bridge Aina Lea, LLC v. Hawaii Land Use Commission, 20-54Issues: (1) Whether, as the U.S. Court of Appeals for the 9th Circuits extensive, published ruling eliminates property owners ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including the Supreme Court, the Supreme Court needs to clarify the rules for recovery for temporary regulatory takings; (2) whether, in light of the confusion in the lower courts as to the application of the factors fromPenn Central Transportation Co. v. New York City to the point where it has become almost impossible for property owners to prevail on this theory the Supreme Court should reexamine and explain howPenn Centralanalysis is supposed to be done or dispensed with; (3) whether, in light of the 9th Circuits holding that almost no value loss no matter how great can ever establish a temporary taking under eitherLucas v. South Carolina Coastal CouncilorPenn Central, it is necessary for the Supreme Court to clarify the standards; and (4) whether, in light ofPenn Centrals clear direction that cases like this are to be determined ad hoc, on their individual facts, and the Supreme Courts approval inCity of Monterey v. Del Monte Dunes, that takings liability be decided by a jury, appellate courts need to stay their hands (as mandated by the Seventh Amendments re-examination clause) when as here reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings.(relisted after the Jan. 15 and Jan. 22 conferences)

American Medical Association v. Azar, 20-429Issues: (1) Whether the Department of Health and Human Services rule for the Title X family planning program which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that all pregnancy counseling under Title X shall be nondirective; and (3) whether the rule violatesSection 1554 of the Affordable Care Act, which requires that HHS shall not promulgate any regulation that harms patient care in any one of six ways, including by interfer[ing] with communications between a patient and her provider.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Department of Homeland Security v. New York, 20-449Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained inImmigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Securitys final rule interpreting the statutory term public charge and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Mayorkas v. Cook County, Illinois, 20-450Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained inImmigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Securitys final rule interpreting the statutory term public charge and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Cochran v. Mayor and City Council of Baltimore, 20-454Issues: (1) Whether the Department of Health and Human Services rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agencys statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Oregon v. Cochran, 20-539Issues: (1) Whether the Department of Health and Human Services final rule which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information violates appropriations statutes requiring that all pregnancy counseling in the Title X program shall be nondirective; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating any regulation that creates unreasonable barriers to obtaining appropriate medical care, impedes timely access to such care, interferes with patient-provider communications regarding a full range of treatment options, restricts providers from disclosing all relevant information to patients making health care decisions, or violates providers ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.(relisted after the Jan. 8 and Jan. 22 conferences; directed to file but not relisted for the Jan. 15 conference)

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Disputes over church property and ACCA ambiguity - SCOTUSblog

By Craig Clough

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Law360 (February 18, 2021, 7:47 PM EST) -- California Gov. Gavin Newsom and other state leaders on Wednesday urged a federal judge to toss a suit challenging coronavirus regulations that temporarily closed barber shops and other cosmetology businesses, arguing they are protected under sovereign immunity and the restrictions are legal exertions of power during a health emergency.

The state leaders said the proposed class action must be dismissed because sovereign immunity bars all of the claims brought by Tatoma Inc., including state-law claims, Takings Clause claims and claims for damages, all of which would also fail as a matter of law.

"The challenged public health orders pass constitutional muster as a permissible exercise of the state's emergency authority in a pandemic, and plaintiff has failed to allege any cognizable infringements on its rights," the officials said.

Tatoma operates Atelier Aucoin Salon in La Jolla, California, and filed the suitin January against the governor, Attorney General Xavier Becerra and Executive Officer of the State Board of Barbering and Cosmetology Kristy Underwood, alleging state-issued shutdown orders for barbers, hair salons and other cosmetology-based businesses violate the Fifth and 14th Amendments, as well as various state laws.

Tatoma argued that because the orders closing the businesses rendered state-issued barber and cosmetology licenses obsolete for a public benefit, the state seized their property without compensation in violation of the Takings Clause of the Fifth Amendment.

The lawsuit outlined various pandemic-related orders issued by Newsom since March that shuttered barbers, beauty salons and nail salons while deeming them "non-essential" businesses, including the latest one on Dec. 29. Tatoma argued the orders are "arbitrary and capricious," in violation of the 14th Amendment.

Many other businesses with questionable "essential" value have been allowed to continue operations with limited capacity, while those in the cosmetology industry have not, Tatoma said.

Newsom and the other officials defended the shutdown orders in their motion to dismiss, arguing the actions were a reasonable exertion of their lawful power during a declared public health emergency.

"Indeed, every federal court to consider a challenge to these orders, either on a motion to dismiss or on a motion for a preliminary injunction, has recognized they do," the officials said.

Tatoma also did not plausibly argue that it suffered any constitutional violations or illegal seizure of its property, the officials said, pointing out that the governor lifted the ban on indoor barber shops and cosmetology businesses days after the Jan. 19 lawsuit was filed.

"Rather than being completely prohibited from pursuing its vocation, plaintiff, like all other hair salons in COVID-affected areas of California, was required to temporarily cease indoor salon services at various times over the course of the last year," the officials said. "In fact, plaintiff is currently open and not prohibited from pursuing its chosen vocation. Accordingly, since plaintiff was never completely prohibited from engaging in its calling, plaintiff has 'not been deprived of a protected liberty interest in pursuing the occupation of [its] choice.'"

The officials cited the Ninth Circuit's 2009 ruling ruling in Guzman v. Shewry , which they said held that a liberty charge "must constitute more than a brief interruption of a plaintiff's ability to pursue an occupation or profession."

The officials said that the 11th Amendment confirms a state is immune from a lawsuit brought in federal court by its own citizens or citizens of other states.

The officials added that an exception to state sovereign immunity, established in the U.S. Supreme Court's 1908 Ex Parte Young ruling, would not apply to the plaintiff's first and second causes of action for alleged violations of the Fourteenth Amendment because the Young ruling does not apply to suits seeking monetary damages, which they said is the only relief the plaintiff is seeking.

Counsel for the parties did not immediately respond to requests for comment.

The defendants are represented by Jodi L. Cleesattle of the California Attorney General's office.

Tatoma is represented by Francis A. Bottini Jr., Albert Y. Chang and Anne Beste of Bottini & Bottini, Inc.

The case is Tatoma Inc. v. Gavin Newsom et al., case number 3:21-cv-00098, in the U.S. District Court for the Southern District of California.

--Editing by Regan Estes.

For a reprint of this article, please contact reprints@law360.com.

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Newsom Looks To Shear Barber's Suit Over COVID-19 Orders - Law360

A new petition issued from the American Civil Liberties Union (ACLU) has made it to the Supreme Court and aims to declare the historic male-only military draft to be unconstitutional.

Noting that the U.S. Department of Defense lifted the ban on women serving in combat in 2013, the petition specifies that the obligation for men to register upon turning 18 years old has yet to be applied to women.

Thousands of women have since served with distinction in combat positions across all branches of the military, the formal petition reads. The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require.

Rooted in this argument is the 1981 case Rostker v. Goldberg, which argued that because American men are required to register under U.S. law and women are not, the male-only draft is discriminatory and unconstitutional.

The act gives U.S. presidents the power to require mandatory conscription of eligible adult males into the U.S. Army, but excludes women. Ultimately, the court held that the act does not violate equal protection clauses under the Fifth Amendment, and that the government is allowed to develop an army in times of national emergency.

Now, the petition asks the Supreme Court to overrule Rostker v. Goldberg since women are formally allowed to register for military service and in combat roles.

It is time to overrule Rostker. The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require, the petition states, citing that military departments acknowledge that requiring both men and women to register would 'promote fairness and equity and further the goal of military readiness.

The Department of Defense has made strides in including women in combat roles, authoring a report in 2015 that called its own previous standards excluding women from military work outdated.

In 2017, a committee was established to review the draft policy within the Military Selective Service Act to evaluate if the draft should be expanded to incorporate women recruits. Despite a commission analysis that recommended the inclusion, Congress has yet to make the requirement for women official.

The Washington Post further notes that last week, a group of veterans who held military leadership roles asked the Supreme Court to take the case and rule the male-only draft requirement a violation of the equal protection clause.

The vast majority of men ... have no advantage in readiness over women, who the current statutory scheme forbid from registering, the brief, filed by former National Security Agency (NSA) director Michael Hayden, reportedly said.

Debate over whether or not the draft requirement for men is constitutional has ensued in multiple lower courts, but these revitalized petitions ask the Supreme Court to overturn their original 1981 ruling.

The petitions authors also note that by excluding women from draft registration requirements, it undermines their own equality as U.S. citizens.

Like many laws that have purported to privilege women over men, the men-only registration requirement burdens women too by perpetuating the notion that women are unworthy of full citizenship stature, the report concludes, citing another Supreme Court case regarding the treatment of women in the military. Excluding women from a duty characterized as a fundamental civic obligation conveys 'not only that they are not vital to the defenseof the country but also that they are not expected to participate in defending it.'

The Supreme Court could reportedly take months before deciding to revisit Rostker v. Goldberg.

Read more here:
Supreme Court asked to declare the all-male military draft unconstitutional | TheHill - The Hill

The criminal justice system is a key part of Americas race problem, according to panelists during a virtual session sponsored Thursday evening by Erie Community Colleges Anti-Racism Task Force.

The topic was "Black and Blue: Policing Communities of Color." For the speakers, the topic has changed considerably because of the storming of the Capitol on Jan. 6 by a mainly white mob. One speaker said the riot would have ended far differently if the mob had been African Americans.

A number of police officers have been arrested for participating and some Capital Police are being probed.

An essential in reshaping policing is who gets into the uniform, according to Canisius College Public Safety Director Kimberly Beaty.

"Not one person is born a police officer. So no one is entitled to the profession of being a police officer," Beaty said. "It is a noble profession. We have to work on hiring the right people, screening. And when you do neighborhood canvasses, like I mentioned, they have to be true. You cant just say, 'Oh, thats Bobs son, lets not really do a background check on him.'"

Beaty is a former deputy police commissioner in Buffalo. She told the meeting there also has to be far better screening and training of officers and longer probationary periods on the street after graduation from the police academy.

Panelists also said policing and the criminal justice system arent changing fast enough in the wake of George Floyd's death and the Black Lives Matter movement. Rochester is making changes, including the creation of a Police Accountability Board.

Board Chair Shani Wilson said the board has a limited budget, but the power to deal with problems.

"I think about the many all-white juries that have allowed officers to escape allegations of horrific wrongdoing against Brown and Black people. The Blue Code shows up in prisons when allegations of wrongdoing against prisoners are countered by convenient and inconsistent testimony from corrections officers, testimony that always trumps the testimony from the prisoners themselves," Wilson said.

Businessman Lamont Williams said the nation must go to its founding document, the Constitution, and follow that charter. Williams said when in the Navy, he took an oath to defend that Constitution, and he wants to make sure everyone knows what the rules are and how to make sure they are enforced on everyone.

"Hold our nation to the rights of all men and women that are given by our Constitution," he said. "But, I think, that as long as we allow systemic racism to permeate our country, we continue to see the laws and rights of the Constitution and the Fifth Amendment in particular, bent, twisted or interpreted in a way to suppress people of color."

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ECC takes on 'Black and Blue: Policing Communities of Color' - WBFO

Steve Donohue| North Augusta

Last month the CDC director extended her order banning evictions for most tenants who cannot pay rent due to COVID. Think about that, an unelected federal employee directing a private citizen to hand over her property rights to a third person, without compensation. Yes, the rent is still due, but what do you think the chances are renters will have six to nine month's of rent for the landlord when the moratorium ends?

Let's agree that landlords are not a sympathetic lot. And yes, no one wants destitute people thrown out on the street because COVID cost them their livelihood. Notice the CDC doesn't compensate property owners for the loss of rent. Landlords must still pay taxes, maintenance, utilities, and mortgages, yet the CDC has cut off the rent money to pay those expenses. The ultimate irony the landlord could be foreclosed by the bank for nonpayment but the renter of the other have of her duplex could not be evicted.

Under federal regulation, 42 CFR 70.2, if the director determines the states have not done enough to stop the spread of a communicable disease she may take reasonable measures to stop the spread including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection. There is nothing about property owners, renters, or evictions. If the director has that much power over private citizens across the nation, then we have a serious problem.

If the federal government wants to take private property to stop the spread of communicable disease, then compensate the property owners as required by the fifth amendment, to wit: (no) private property be taken for public use, without just compensation. The ends may be justified, but the means are not.

Steve Donohue, North Augusta

MORE:Moratorium hasn't stopped many in Augusta from eviction

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Letter: CDC vs. landlords. If director has that much power over private citizens, there's a problem. - The Augusta Chronicle