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Posted 10 Aug 2020 in Commentary Written by: Erich Eiselt

Mays v. Governor, no. 157335 (Mi. July 29, 2020). In a 4-2 opinion affirming the courts below, the Michigan Supreme Court declined to dismiss a class action for inverse condemnation and bodily harm against former Michigan Governor Rick Snyder and other state and local officials for their actions which resulted in toxic water from the Flint River being supplied  to Flint residents, causing a major health crisis, damage to residential water systems and a precipitous drop in property values. For more than...

Posted 27 Jul 2020 in Case Notes, Commentary Written by: Amanda Karras

On Friday night, the Supreme Court denied a request for an injunction by a church in Nevada seeking to hold in person services on the same terms as other facilities in the State, including casinos.  The order limits religious gatherings to 50 people while allowing restaurants and casinos to operate as 50% capacity. The majority that denied the injunction offered no written opinion accompanying its decision (which is not unusual for this type of request), but Justice Alito (joined by Justices...

Posted 09 Jul 2020 in Case Notes, Commentary Written by: Amanda Karras

Today, in a 5-4 decision, in McGirt v. Oklahoma, the Supreme Court held that a large swath of eastern Oklahoma, including most of the city of Tulsa, is “Indian country” for the purposes of the Major Crimes Act (MCA).  In a decision that was as much a history lesson as a debate over statutory text and interpretation, the majority concluded that Congress never disestablished the Creek Nation reservation in Oklahoma and therefore, the state of Oklahoma lacked jurisdiction to criminally...

Posted 18 Jun 2020 in Commentary Written by: Amanda Karras

Today, in a 5-4 decision, the Supreme Court held that the current administration’s decision to rescind the Deferred Action for Childhood Arrivals program (DACA) was arbitrary and capricious under the Administrative Procedure Act (APA), but 8 Justices agreed that the decision did not constitute and Equal Protection violation.  The facts in this case were fairly unusual because everyone agreed that administration could rescind DACA at any time because it does not like the policy.  But instead, the federal government has...

Posted 15 Jun 2020 in Commentary Written by: Amanda Karras

The Supreme Court held in a 6-3 opinion in Bostock v. Clayton County, that an employer who fires an individual merely for being gay or transgender violates Title VII.  Writing for the majority, Justice Gorsuch explains “[s]ex plays a necessary and undisguisable role” in an employer’s decision to “fire an individual for being homosexual or transgender”, which is “exactly what Title VII forbids.” The textualist opinion includes numerous examples of why it is “impossible to discriminate against a person for being...

Posted 05 Jun 2020 in Commentary Written by: Amanda Karras

As lawyers, the ABA model rules of professional conduct tell us that we “should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” [i]  Further, as lawyers we are instructed to further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer...

Posted 29 May 2020 in Case Notes, Commentary Written by: Erich Eiselt

South Bay United Pentecostal Church v. Newsom, no. 19A1044, 590 US ___ 2020 (U.S. May 29, 2020). A 5-4 Supreme Court majority has declined to enjoin Governor Gavin Newsom’s Executive Order restricting in-person religious gatherings. In an apparent response to Justice Kavanaugh’s dissent, Justice Roberts wrote a late-night  individual concurrence, deferring to elected officials responsible for protecting the health of their constituents and citing the fact that California’s limits on the size of in-person activities affect not only worship services but...

Posted 28 May 2020 in Case Notes, Commentary Written by: Erich Eiselt

Burnstown Farms Cannabis Company v. Township of Beckwith, 2019 CanLII 57318 Click here to view. Burnstown Farms Cannabis Company (Applicant) applied for a federal license under the Cannabis Act, S.C. 2018, Chapter 16 (Cannabis Act) to cultivate and produce cannabis on a farm in the Township of Beckwith (Township). The Township has a bylaw that restricts operations on agricultural land to "normal farm practices" as defined in the Farming and Food Protection Act, 1998 (FFPPA). Normal farm practice means that it is "(a) conducted in...

Posted 02 May 2020 in Case Notes, Commentary Written by: Erich Eiselt

Maryville Baptist Church, Inc. v. Beshear, no. 20-cv-5427 (6th Cir. May 2, 2020). The Sixth Circuit reverses in part a lower court refusal to grant a church's motion for restraining order against the Kentucky Governor's orders which did not include churches as "essential services," enjoining the state from taking action against drive-in church services.  On March 19, 2020, Kentucky Governor Andy Beshear (Beshear) issued an order prohibiting "[a]ll mass gatherings," "including, but not limited to, community, civic, public, leisure, faith-based, or sporting...

Posted 27 Apr 2020 in Case Notes, Commentary Written by: Erich Eiselt

Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020). Affirming the Eleventh Circuit-which had reversed the lower court, the Supreme Court holds that annotations to the Georgia Code are effectively produced by lawmakers, who cannot be "authors" for purposes of the Copyright Act, meaning that Lexis, which contracts with the State to license and distribute the annotated code, cannot prevent the annotated version from being placed in the public domain. The Copyright Act grants monopoly protection for "original...