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Posted 25 Jan 2016 in Case Notes, Commentary
In an already action packed term the Supreme Court has definitively secured this term’s place in history but agreeing to decide whether the President’s deferred action immigration program violates federal law or is unconstitutional. The Court will issue an opinion in United States v. Texas by the end of June 2016.  The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States. About 5 million people are affected.  Twenty six states sued the United States and won before the Fifth Circuit.  The Court will decide four legal issues in this case.

Posted 25 Jan 2016 in Case Notes, Commentary
It was a typical oral argument at the Supreme Court in a “big” case. Protesters outside with opposing messages tried to out yell each other, but everyone inside was listening to Justice Kennedy.  In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

Posted 23 Dec 2015 in Case Notes, IMLA Briefs
You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional.  In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.   Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.  The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.  Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent.

Posted 10 Dec 2015 in Case Notes, Commentary
Every year the Supreme Court refuses to hear thousands of cases. A denial of certiorari does not mean the Court agrees with the lower court decision. So most cert denials go unnoticed.   That said, many eyebrows were raised for many reasons when the Court denied cert in Friedman v. City of Highland Park. The issue in the case was whether the City of Highland Park could ban assault weapons and large capacity magazines. 

Posted 18 Sep 2015 in Case Notes, Commentary
Imagine being sued in a court where there is no appeals process and the legal precedent relevant to your case may not be written down. That is the situation Dollar General has found itself, and state or local governments may find themselves in, if the Supreme Court does not reverse the Fifth Circuit’s decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians.

Posted 11 Sep 2015 in Case Notes, Commentary, IMLA Briefs
Some Supreme Court case are epic because they are important. Other cases are epic because they have been litigated for decades. Depending on how the Court rules, Hyatt II may be important for both reasons. Gilbert Hyatt’s dispute with the California Franchise Tax Board began in the early 1990s. The Supreme Court decided one issue in his case in the early 2000s. The stakes in Hyatt II are high not just for Hyatt but for all states.  In 1993 the Franchise Tax Board (FTB) of California audited Gilbert Hyatt following a newspaper article reporting he made a lot of money patenting a computer chip. Hyatt’s 1991 tax return indicated he lived in California for only nine months and relocated to Nevada. FTB concluded that Hyatt moved to Nevada in 1992 and assessed him $10.5 million in taxes and interest.

Posted 02 Sep 2015 in Case Notes

In Jones v. Davis, the Ninth Circuit is considering whether California's death penalty scheme violates the Eighth Amendment because it is arbitrarily imposed and plagued by systemic delays.  In a hearing before a three-judge panel earlier this week, the Court had tough questions for the California Attorney General's office, which is defending California's death penalty and challenging the district court's grant of habeas relief.  The AG's argument focuses less on the systemic issues address by the Appellee and numerous amici, including...

Posted 24 Aug 2015 in Case Notes, Commentary
It takes only common sense to know that whoever is in charge of redistricting would prefer to gerrymander in their favor as much possible. The irony of the Supreme Court agreeing to decide Harris v. Arizona Independent Redistricting Commission is inescapable. On June 29 in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court held that Arizona’s redistricting commission could be solely responsible for congressional redistricting. In the first sentence of its opinion the Court noted Arizona voters adopted the commission to avoid partisan gerrymandering. The next day the Court agreed to decide Harris where the plaintiffs allege that Arizona’s redistricting commission engaged in partisan gerrymandering in state legislative redistricting that violated one-person, one-vote. 

Posted 21 Aug 2015 in Case Notes, Commentary
Stare decisis may be tossed out the window next Supreme Court term in what promises to be one of the most closely followed cases. The stakes for unionized public employees couldn’t be higher. In Friedrichs v. California Teachers Association the Supreme Court has agreed to decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.