When the Supreme Court term opens next month, perhaps no issue will be more urgent – and more complicated – than voting rights. One of the first cases the justices will hear is Gill v. Whitford, a challenge to the 2011 redrawing of district lines in Wisconsin. While the Court has struck down racially-motivated gerrymanders in the past, no election map has ever been rejected as a purely partisan gerrymander. And recent developments have some court watchers concerned that Justice Anthony Kennedy may still not be ready to do that. Our guest this episode is Richard Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, and curator of the must-read Election Law Blog.
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On February 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” to children with certain disabilities. E.F., a child who has a severe form of cerebral palsy, was assisted in various daily activities by her service dog Wonder. Officials at Ezra Eby Elementary School, however, refused to allow Wonder to join E.F. in kindergarten, so her parents (the Frys) proceeded to homeschool her instead. They also filed a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR), alleging that the exclusion of E.F.’s service dog violated federal disabilities laws, including Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. OCR sided with the Frys and Ezra Eby relented. Concerned about possible resentment from Ezra Eby officials, however, the Frys instead enrolled E.F. in a different elementary school that had welcomed Wonder. The Frys also filed suit against Ezra Eby’s local and regional school districts (and principal) in federal district court, seeking declaratory and monetary relief for the alleged violations of Title II and section 504. The District Court dismissed the suit on the grounds that the Frys had failed first to exhaust administrative procedures available under the IDEA, as required by section 1415(l) of that law. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that section 1415(l)’s exhaustion requirement applies whenever the plaintiff’s alleged harms are “educational” in nature. -- The Supreme Court, however, granted certiorari to address confusion in the courts of appeals as to the scope of section 1415(l)’s exhaustion requirement. By a vote of 8-0, the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that exhaustion of the administrative procedures established by the IDEA is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The Court then remanded the case to the Sixth Circuit for application of that standard to the Frys’ complaint in the first instance: is their complaint fundamentally about denial of a free appropriate public education, or about something else? Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. -- To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.
Our jam-packed "breaking news" episode covers some of the biggest stories trending at the moment, including the Equifax breach. First, Closed Arguments returns by tackling a proposal from friend of the show Eli Bosnick, who asks -- in light of Trump's repeal of DACA -- whether we can't just marry off the 800,000 program participants. We can't; listen and find out why. In the main segment, Andrew walks us through the Equifax data breach, the pending class-action lawsuits, and all of the key legal issues. He even weighs in on the "chat bot" that some are saying will file your suit for you! Next, Breakin' Down the Law continues with everything you wanted to know about the Supreme Court's recent gerrymandering decision. Finally, we end with a new (and possibly too-easy!) Thomas Takes the Bar Exam Question #41 about the admissibility of footprint and shoe evidence. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None. Have us on your show! Show Notes & Links
We previously discussed political gerrymandering (including the "Wisconsin case") in episode 54, and racial gerrymandering and Cooper v. Harris in episode 72.
On January 9, 2017, the Supreme Court decided White v. Pauly, a petition involving a denial of qualified immunity to law enforcement officers in a civil rights dispute. In October 2011, officers Kevin Truesdale and Michael Mariscal went to the home of Daniel and Samuel Pauly to investigate a complaint made by several drivers that Daniel had been driving erratically that evening. The officers entered the Pauly property while a third officer, Ray White, remained near the highway in case Daniel returned there. Truesdale and Mariscal did not find Daniel’s truck, but they did notice lights on in one of two houses on the property. Upon approaching the building covertly they spotted two men moving around inside, and then requested that Officer White join them. When the Paulys became aware that strangers were present outside there was a verbal confrontation; according to the officers, the officers self-identified as police and threatened to enter the house if the brothers did not come out. It appears however, that neither Pauly heard the self-identification. Just as White was arriving the brothers warned that they had firearms. Upon hearing the warning, White took cover behind a stone wall fifty feet from the house. Daniel then fired two shotgun blasts out the back door and when Samuel pointed a handgun out the window in White’s direction, Mariscal fired at him but missed. Several seconds later White also fired and hit Samuel, killing him. Samuel Pauly’s estate and Daniel Pauly sued the officers under 42 U.S.C. § 1983, alleging an excessive use of force in violation of the Fourth Amendment. The district court denied qualified immunity to the officers and a divided panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. The majority reasoned that, taking the plaintiffs’ version of the facts as true, a reasonable person in the position of Officers Mariscal and Truesdale should have understood that their conduct might cause the Paulys to use deadly force in defense of their home. As to Officer White, the majority concluded that while he did not participate in much of the lead up to the shootout, a reasonable officer in his position would have believed a verbal warning was required given that the stone wall afforded him secure cover. -- The Supreme Court granted the officers’ petition for certiorari, vacated the judgment of the Tenth Circuit, and remanded the case. Qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” On the record described by the Tenth Circuit, the Supreme Court held, Officer White did not violate clearly established law. But because the parties disputed whether White actually arrived on the scene several minutes before the shooting started and should have known that the other officers had not properly identified themselves, the Court left this potential alternative ground for affirmance--as well as whether Truesdale and Mariscal were entitled to qualified immunity in light of the Supreme Court’s ruling--for further consideration by the Tenth Circuit on remand. Justice Ginsburg issued a concurring opinion. -- To discuss the case, we have Josh Skinner, Of Counsel with Fanning, Harper, Martinson, Brandt & Kutchin, P.C.
Today's show discusses the Trump budget, scientist Kevin Folta's defamation lawsuit, and the recent debt ceiling deal struck between Trump and Democrats. In the wake of hurricanes Harvey and Irma, the guys encourage you to donate to either (or both) the Red Cross and/or Habitat for Humanity's hurricane relief efforts. If you do, please post your receipt on Facebook for a chance to win an Opening Arguments t-shirt. We begin with a great question from British listener David Cartwright about the Trump presidency -- and the answer will surprise you! In the main segment, the guys break down Kevin Folta's defamation lawsuit in which he alleges that the New York Times defamed him by publishing a "hit piece" implying that he's in the pocket of Monsanto. Next, we explain the practical and political ramifications of the debt ceiling agreement. Finally, we end with the answer to Thomas Take the Bar Exam Question #40 regarding jury instructions and the presumption of intent. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links
This is a link to the Red Cross's page for donations for hurricane relief; and here is a link to Habitat for Humanity's hurricane relief efforts.
This week's "breaking news" episode covers three of the biggest stories trending at the moment: the Utah nurse who was arrested for standing up for her patient's rights; Trump's repeal of DACA; and churches suing for relief funds. In the wake of hurricanes Harvey and Irma, the guys encourage you to donate to either (or both) the Red Cross and/or Habitat for Humanity's hurricane relief efforts. We begin with the story behind the arrest of Alex Wubbels, the Utah nurse who refused to take and turn over her patient's blood to the police. In the main segment, Andrew walks us through President Trump's directive to end the Deferred Action for Childhood Arrivals (DACA) program. Does Andrew actually agree with a legal opinion authored by Jefferson Beauregard Sessions III?? Listen and find out! Next, Breakin' Down the Law continues with everything you wanted to know about churches suing for funds allocated to disaster relief and recovery. Is the Friendly Atheist right when he says such a case is legally distinct from the precedent set by Trinity Lutheran v. Comer? Finally, we end with a fiendishly difficult and all-new Thomas Takes the Bar Exam Question #40 about jury instructions regarding the presumption of intent. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None. Have us on your show! Show Notes & Links
This is a link to the Red Cross's page for donations for hurricane relief; and here is a link to Habitat for Humanity's hurricane relief efforts.
Today's show discusses the free speech issues surrounding the Trump administration issuing a search warrant to DreamHost in connection with its hosting of a website critical of the Trump administration. We begin, however, with the triumphant return of "CLOSED ARGUMENTS" -- this time, examining a truly insane claim being made by Ron Paul supporters and other nutballs who think that the Washington Metro Safety Commission overturns the Fourth Amendment. (It doesn't.) In the main segment, we delve into all the intricacies of the DreamHost search warrant and what it means for us as internet users. Next, the guys tackle a "hypothetical" question about conspiracy that just might take place on Yodel Mountain. Finally, we end with the answer to Thomas Take the Bar Exam Question #39 regarding hearsay testimony. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links
In June, the Supreme Court issued per curiam opinions in two habeas cases: Jenkins v. Hutton and Virginia v. LeBlanc. In today’s episode, we will be discussing the opinions in both cases. -- Jenkins v. Hutton -- More than thirty years ago, an Ohio jury convicted Percy Hutton of aggravated murder, attempted murder, and kidnaping. The jury findings included aggravating circumstances that permitted imposition of the death penalty or life imprisonment. During the penalty phase of the proceedings, the jury was instructed that it could recommend a death sentence only if it unanimously found that the State had “prove[d] beyond a reasonable doubt that the aggravating circumstances, of which [Hutton] was found guilty, outweigh[ed] the [mitigating factors].” The jury recommended death, the trial court accepted that recommendation, and Hutton’s death sentence was affirmed on direct appeal. He eventually filed a habeas petition, arguing that the trial court denied him due process because it failed to tell the penalty phase jurors that, when weighing aggravating mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase of the trial. As Hutton had not objected to the jury instructions at trial or raised this issue on direct appeal, the district court dismissed his habeas petition on grounds of procedural default. A divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed, however, concluding that it could excuse the procedural default in the interests of avoiding a miscarriage of justice. Hutton, the Sixth Circuit argued, had “show[n] by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found [him] eligible for the death penalty under the applicable state law.” -- In a per curiam opinion issued on June 19, the Supreme Court reversed the judgment of the Sixth Circuit and remanded the case. The Sixth Circuit erred in reaching the merits of Hutton’s claim, the Court concluded, because to overcome a procedural default on fundamental miscarriage of justice grounds the focus should be on whether a properly instructed jury could have recommended death, not simply whether any alleged error might have affected the jury’s verdict. -- Virginia v. LeBlanc -- In 1999, Dennis LeBlanc, who was then 16, raped a 62-year-old woman and was sentenced to life imprisonment in 2003 by a Virginia court. Although Virginia had abolished parole, the state had replaced it with a “geriatric release” program for the conditional release of older inmates under some circumstances. In 2010, however, the U.S. Supreme Court held in Graham v. Florida that the Eighth Amendment prohibits juvenile offenders convicted of nonhomicide offenses from being sentenced to life without parole. Although states would not be required to guarantee eventual freedom to nonhomicide juvenile inmates, the Court explained, they must still offer juvenile offenders “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Invoking the Graham decision, LeBlanc filed a motion in Virginia state court to vacate his sentence. The state court denied relief, relying upon the Virginia Supreme Court’s prior decision in Angel v. Commonwealth, which had concluded that Virginia’s geriatric release program satisfied Graham’s parole requirement for juvenile nonhomicide offenders. The Virginia Supreme Court declined review of LeBlanc’s case and he then filed a federal habeas petition arguing that the Virginia courts’ position regarding geriatric release and Graham had fundamentally misapplied federal law. The district court agreed and granted relief. A divided U.S. Court of Appeals for the Fourth Circuit affirmed, and Virginia sought certiorari. -- In a per curiam opinion issued on June 12, the Supreme Court reversed the judgment of the Fourth Circuit, concluding that the Virginia courts had not applied the Graham rule unreasonably. To satisfy the habeas standard, the Supreme Court noted, the ruling in question must be “objectively unreasonable, not merely wrong; even clear error will not suffice.” And it was not objectively unreasonable, the Court indicated, for the state courts to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole. Justice Ginsburg filed a concurring opinion. -- And now, to discuss the cases, we have Ron Eisenberg, Deputy District Attorney for the Philadelphia District Attorney’s Office.
This week's "breaking news" episode covers two of the biggest Trump stories right now: the ban on trans soldiers in the military, and the President's pardon of Sheriff Joe Arpaio. First, though, we begin with the seldom-necessary "Andrew Was Wrong" segment. The less said about this, the better. In the main segment, Andrew walks us through President Trump's directive to the Departments of Defense and Homeland Security regarding transgender servicemembers, as well as the lawsuit filed by the ACLU challenging the directive. Next, Breakin' Down the Law continues with everything you wanted to know about the Joe Arpaio pardon. Is it legal? Does it make him civilly liable? Does it erase his prior convictions? Can he now be forced to testify? Listen and find out. Finally, we end with an all-new Thomas Takes the Bar Exam Question #39 about the admissibility of a criminal defendant's prior statement. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None. Have us on your show! Show Notes & Links
On April 3, 2017, the Supreme Court decided McLane Co., Inc. v. Equal Employment Opportunity Commission. In 2008, Damiana Ochoa filed a sex discrimination charge under Title VII of the Civil Rights Act of 1964 against her former employer McLane Co., Inc., a supply-chain services company, when she failed a physical evaluation three times after returning from maternity leave. The Equal Employment Opportunity Commission (EEOC) launched an investigation into Ochoa’s charge, but McLane declined the EEOC’s request for “pedigree information,” meaning names, Social Security numbers, addresses, and telephone numbers of those employees who had taken the physical evaluation. The EEOC then expanded its investigation into McLane’s operations nationwide and possible age discrimination, issuing subpoenas to McLane for pedigree information regarding these matters too. McLane refused to provide this information as well, and the EEOC then filed actions in federal district court to enforce the subpoenas issued regarding both Ochoa’s charge and the EEOC’s own age discrimination charge. The District Court quashed the subpoenas, finding the pedigree information irrelevant to the charges, but the U.S. Court of Appeals for the Ninth Circuit, applying a plenary or “de novo” standard of review, reversed. Other U.S. Courts of Appeals, however, apply a more deferential “abuse of discretion” standard in such situations, and the U.S. Supreme Court granted certiorari to resolve the split among the Courts of Appeals. -- By a vote of 7-1, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Sotomayor, the court held that a district court’s decision whether to enforce or quash a subpoena issued by the EEOC should be reviewed for abuse of discretion, not de novo. Justice Sotomayor’s opinion was joined by the Chief Justice and Justices Alito, Breyer, Kagan, Kennedy, and Thomas. Justice Ginsburg filed an opinion concurring in part and dissenting in part. -- And now, to discuss the case, we have Ellen Springer, an Associate at Baker Botts, LLP.
