Month: July 2017

On June 26, 2017, the Supreme Court decided Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity Lutheran). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity Lutheran’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed the suit and a divided panel of the U.S. Court of Appeals for the Eighth Circuit affirmed, concluding that the First Amendment’s Free Exercise Clause did not compel the State to disregard the broader anti-establishment principle reflected in its own constitution. -- By a vote of 7-2, the United States Supreme Court reversed the judgment of the Eighth Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that the DNR’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. -- Justices Kennedy, Alito, and Kagan joined the Chief Justice’s majority opinion in full, and Justices Thomas and Gorsuch joined except as to footnote 3. Justice Thomas filed an opinion concurring in part, in which Justice Gorsuch joined. Justice Gorsuch filed an opinion concurring in part, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- And now, to discuss the case, we have David A. Cortman, who was lead counsel in Trinity Lutheran Church of Columbia v. Pauley and is Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom.

On May 30, 2017, the Supreme Court decided Esquivel-Quintana v. Sessions. In 2009, Juan Esquivel-Quintana, who was then 21, pleaded no-contest to a California statutory rape offense after engaging in consensual sex with a 17-year old. California criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” and for this purpose considers anyone under the age of 18 to be a minor. The Department of Homeland Security then initiated removal proceedings against Esquivel-Quintana under the Immigration and Nationality Act (INA), which allows for the removal of any alien convicted of an aggravated felony, including “sexual abuse of a minor”--though it does not define that phrase. The Board of Immigration Appeals (BIA) denied Esquivel-Quintana’s appeal, concluding that the age difference between Esquivel-Quintana and the minor was sufficiently meaningful for their sexual encounter to qualify as abuse of a minor. The U.S. Court of Appeals for the Sixth Circuit, deferring to the BIA’s interpretation, denied Esquivel-Quintana’s petition for further review. -- The question before the Supreme Court was whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA. -- By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit. In an opinion by Justice Thomas, the Court held that in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of "sexual abuse of a minor" requires the age of the victim to be less than 16. Because the California statute of conviction did not fall categorically within that generic federal definition, Esquivel-Quintana’s conviction was not an aggravated felony under the INA. All other members joined in Justice Thomas’s opinion except Justice Gorsuch, who took no part in the consideration or decision of this case. -- To discuss the case, we have Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute.

On June 23, 2017, the Supreme Court decided Murr v. Wisconsin. In the 1960s the Murrs purchased two adjacent lots (Lots F and E), each over an acre in size, in St. Croix County, Wisconsin. In 1994 and 1995, the parents transferred the parcels to their children and the two lots were merged pursuant to St. Croix County’s code of ordinances, with local rules then barring their separate sale or development. A decade later the Murrs sought to sell Lot E in order to fund construction work on Lot F, but the St. Croix County Board of Adjustment denied a variance from the ordinance barring separate sale or development of the lots. The Murrs sued the state and county, claiming that the ordinance effected an uncompensated taking of their property and deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court disagreed and granted summary judgment to the state and county. The Court of Appeals of Wisconsin affirmed, concluding that the Murrs took the properties with constructive knowledge of the resulting restrictions and had not suffered a loss in value of more than 10%. The Wisconsin Supreme Court denied further review. -- The question before the United States Supreme Court was whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes. -- By a vote of 5-3, the Supreme Court affirmed the judgment of the Court of Appeals of Wisconsin. In an opinion by Justice Kennedy, the Supreme Court held that the Wisconsin court was correct to analyze the Murrs’ lots as a single unit and that no compensable taking had occurred. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the consideration or decision of this case. -- To discuss the case, we have James S. Burling, who is Vice President of Litigation, Pacific Legal Foundation.

For today's show, we take a deep dive into the law of contracts, featuring the "parol evidence" rule. First, however, we answer a question from special listener Lydia S. who wants to know all about Blac Chyna, Rob Kardashian, and "revenge porn."  YOU asked for it! In the main segment, Andrew and Thomas discuss what you can and can't do to dispute a written contract. Next, Garry Myers asks us about why law firms are all structured as partnerships.  Again, the answer might surprise you!. Finally, we end with the answer to Thomas Take the Bar Exam Question #32 regarding 42 U.S.C. § 1983.  Listen and find out if Thomas makes it back to .500!   And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None!  Have us on your show! Show Notes & Links

1. You can check out California's "revenge porn" law,  Penal Code - PEN § 647(j)(4), by clicking here.
2. And this is the Los Angeles Times article detailing Kamala Harris's first successful prosecution under the law back when she was California's Attorney General.

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