Monthly Archives: June 2013

Prop. 8: official proponents of Prop 8 could not appeal

The Supreme Court decided Hollingsworth v. Perry, No. 12-144 (2013), holding that petitioners did not have standing to appeal Proposition 8.

As background, California granted same-sex marriages.  However, this was later reversed through Proposition 8.  Under Proposition 8, California Constitution was changed to define marriage as a union between a man and a woman.  The California Supreme Court held that Proposition 8 left the rights of same-sex couples largely undisturbed, reserving only the official designation of the term marriage for the union of opposite-sex couples.

The parties in this lawsuit help explain the Supreme Court’s decision.  Respondents (Plaintiffs), two same-sex couples who wished to marry, filed a lawsuit in federal court. Defendants (including the Governor, Attorney General, and other officials) did not decent the law.  Nevertheless, Defendants continued to enforce the law.

Petitioners, who appealed, were official proponents of Proposition 8.  Petitioners, instead of Defendants, defended Proposition 8.  The District Court then held that Proposition 8 was unconstitutional.    Petitioners (not Defendants) appealed.

Now the question is: do these Petitioners have standing in order to be involved in this case?  The California Supreme Court held that Petitioners were authorized to appear and assert the state’s interest in the validity of Proposition 8.  The Ninth Circuit then affirmed the District Court’s decision, ruling that Proposition 8 was unconstitutional.

The Supreme Court ruled that Petitioners did not have standing.  First of all, when Proposition 8 was ruled unconstitutional two things happened: Respondents (Plaintiffs) no longer had an injury to redress because they won; and Defendants chose not to appeal.

Petitioners did not have a personal and individual injury.  There was no “direct stake” in the outcome of the appeal.  In other words, they were pushing a generalized grievance.  Consequently, Petitioners could not appeal.

The Supreme Court explained,

No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” that is not a “particularized” interest sufficient to create a case or controversy under Article III.

Leave a comment

Filed under Appellate, civil rights, courts, legal decision, state, Supreme Court

DOMA is unconstitutional

The Supreme Court opinion on United States v. Windsor, No. 12-307 (2013) held that DOMA was unconstitutional under the Fifth Amendment when it failed to recognize same-sex marriage federally.

It is important to note that the reasoning behind this ruling was based on the fact that there are States which granted same-sex marriage but were not recognized federally.  By failing to recognize those same-sex marriages, the government was discriminating against same-sex married couples.  In doing so, same-sex married couples were deprived of the benefits and responsibilities of over 1,000 federal laws.  Including protections under criminal law and provide financial harm to children of same-sex couples.

The Supreme Court noted that the State’s authority to regulate marriages was being squashed by the federal government.  Based on precedent, “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”  “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.'” (italics added).

Instead of respecting the State’s authority to regulate marriages, DOMA’s purpose was to “impose a disadvantage, a separate status, and so a sigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Given that DOMA’s purpose was to impose restrictions and disabilities, the Supreme Court stated that “[b]y doing so [DOMA] violates basic due process and equal protection principles.”

The Supreme Court found that

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principal purpose is to impose inequality, not for other reasons like governmental efficiency….

DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

1 Comment

Filed under civil rights, courts, federal, legal decision, state, Supreme Court

The Voting Rights Act

The Supreme Court ruled on Northwest Austin Municipal Utility District No. 1 NAMUDNO v. Holder, No. 08-322 (2013), answering the question of the whether a district (not the state) could seek the bailout provision under the Voting Rights Act.

The decision of the Supreme Court is important here because it did not rule on the issue of whether the Voting Rights Act was constitutional.

Instead, the Supreme Court ruled that the district could use the “bailout” provision under the Voting Rights Act, even if the state could not.  In holding this, the Supreme Court explained that the district fell under the definition of a “State of political subdivision,” and thereby could use the “bailout” provision.

Generally, the Voting Rights Act requires certain states to get pre-clearance before making any changes to elections.  One of these states includes Texas.  However, there is a provision (“bailout”) that states that the state can seek a declaratory judgment from a three-judge panel District Court in Washington, D.C.  42 USC 1973(b)(a)(1), 1973c(a).  The bailout provision requires:

  • The state has not used any forbidden voting test for the last 10 years;
  • The state has not been subject to a valid objection under the Voting Rights Act section 5;
  • The state has not been found liable for other rights act violations; and
  • The state has engaged in constructive efforts to eliminate intimidation and harassment of voters.

The Voting Rights Act only authorizes a bailout suit by a State or political subdivision.  42 USC 19873b(a)(1)(A).

Here, the government argued that under the statutory definition of the bailout provision, a district could not seek a bailout provision.  The Act provided that a “‘political subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” Section 14(c)(2).  The government argued that because the district was not a county or parish and did not conduct its own voter registration, the district was not covered under the Act.

However, the Supreme Court disagreed.  Citing previous Supreme Court cases, the Supreme Court stated the definition of a “political subdivision” must be broad and not limited to the statutory definition.  The Supreme Court explained,

Our decisions have already established that the statutory definition in [section] 14(c)(2) does not apply to every use of the term “political subdivision” in the Act.  We have, for example, concluded that the definition does not apply to the pre clearance obligation of [section] 5.

There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of [section] 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in [section] 14(c)(2) of the Act… [O]nce a State has been designed for coverage, [section] 14(c)(2)’s definition of political subdivision has no operative significance in determining the reach of [section] 5.

(markings in original).  Taking a broad approach, the Supreme Court ruled that a district was a political subdivision.

In addition, the Supreme Court noted that the 1982 amendments provided that even if the state could not bailout, a political subdivision might be able to assuming it met the bailout requirements.

via We gave you a chance: Today’s Shelby County decision in Plain English : SCOTUSblog.

Leave a comment

Filed under civil rights, District Court, legal decision, rules, state, Supreme Court

Federal funding restrictions and the First Amendment

Generally, it is well-known that under the Spending Clause of the Constitution if you want federal funding, you have to abide by the conditions/limitations imposed by the government.  For instance, you could receive a federal grant as long as you submit X reports to the government every month.  And generally, if you are opposed to these policies/conditions, you always have the option of declining the grant.

Think, for example, of the grant offered to States if they adopt the federal Affordable Care Act Medicaid extensions.  Some States have agreed to expand, while others have rejected the expansion.  The States that choose to expand will receive monetary aid, while the rejecting States will not. See the May 29, 2013 image here.

The Supreme Court has highlights a new twist.  In Agency for Int’l Devep. v. Alliance for Open Society Int’l, No. 12-10 (2013), the Supreme Court has held that in some situations these restrictions run foul of the First Amendment – Freedom of Speech.

The Alliance for Open Society case deals with a organization receiving federal funds to combat AIDS/HIV.  As a condition for this federal funding, the government required the organization to adopt policies against prostitution and sex trafficking.

Justice Roberts pointed to how the court has interpreted the First Amendment.  Pursuant to the Freedom of Speech, the government is prohibited from telling people what they must say.  See, e.g., Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 US 47, 61.  Consequently, the Supreme Court held that the requirement violated the First Amendment.

The question for the Supreme Court then focused on whether the government can still impose that requirement as a condition for receipt of federal funding.  The Supreme Court explained,

As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds….

At the same time, however, we have held that the Government “‘may not deny a benefit to a person on the basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.'”… In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights.

This is a fine line being followed by the Supreme Court.  The Supreme Court distinguished cases where the government infringes the Freedom of Speech with cases where Congress is merely deciding not to subsidize certain actions/scenarios/circumstances.

The Supreme Court explains these different scenarios as follows:

We explained that Congress can, without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem.  In Title X, Congress had defined the federal program to encourage only particular family planning methods.  The challenged regulations were simply “designed to ensure that the limits of the federal program are observed,” and “that public funds [are] spent for the purposes for which they were authorized…

The regulations governed only the scope of the grantee’s Title V projects, leaving it “unfettered in its other activities.”  … The TitleX grantee can continue to . . . engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.” … Because the regulations did not “prohibit[] the recipient from engaging in the protected conduct outside the scope of the federally funded program,” they did not run afoul of the First Amendment.

(italics and marks in original).

Leave a comment

Filed under civil rights, federal, legal decision, Supreme Court

No citizenship proof for voters

The Supreme Court decided Arizona v. Inter Tribal Council of Arizona, where the Supreme Court ruled that federal law preempted Arizona’s law.  In other words, it held that Arizona’s requirement of proof of citizenship was in conflict with the National Voter Registration Act.  Thereby, that requirement was rejected.

Arizona’s law required registered voters to show proof of citizenship.  Under Arizona’s law, a person must be a citizen to be eligible to vote.  This case concerned only how Arizona was trying to enforce that qualification.  In 2004, Arizona voters passed Proposition 200, which provided that voters must “present proof of citizenship when they register to vote and to present identification when they vote on election day.”  If an individual does not provide “satisfactory” proof of citizenship, then the application must be rejected.

The issue here is how this citizenship-proof law and the National Voting Registration Act work together.  The Voter Registration Act required that states must “accept and use” the Federal Form.  The Voter Registration Act provided that a state shall “ensure that any eligible applicant is registered to vote in an election… if the valid voter registration form of the applicant is post-marked.” (italics in original).

Although the Voter Registration Act provides that states can create their own state-specific voter-registration forms, the Voting Registration Act also places a backstop.  The Supreme Court explained that,

No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.

Based on this language, the Supreme Court rejected Arizona’s arguments.  If Arizona, or any other state, could demand Federal Form applicants additional pieces of information, “the Federal Form ceases to perform any meaningful function, and would be a feeble means of ‘increas[ing] the number of eligible citizens who register to vote in elections for Federal Office.” (quotations and marks in original).

Leave a comment

Filed under civil rights, legal decision, rules, state, Supreme Court

Silence can be used against defendant

In Salinas v. Texas, No. 12-246, 2013 BL 158572 (2013), the Supreme Court that a defendant who didn’t expressly invoke his 5th Amendment privilege against self-incrimination before an arrest can have his silence used against him in court.

In this case, defendant Salinas voluntarily went to the police station.  Here, Salinas answered questions until he was asked whether the shell casings found at the murder scene matched his shotgun.  This silence was used against him in court.  Salinas was then convicted of the crime.

The Supreme Court held that there was no violation of the right against self-incrimination.  The Supreme Court stated,

 Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question.

The Supreme Court explained that a defendant does not invoke the privilege by remaining silent.

The Supreme Court raised an interesting question: what happens if the defendant had invoke the 5th amendment?  Justice Alito explained that the court did not have to decide on what the result would be if the defendant had indeed asserted his privilege.

Justice Thomas, however, in a concurring opinion, stated that even if Sallinas had invoked the privilege, the silence could still be used in court.

Justice Thomas explained:

A defendant is not ‘compelled . . . to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence.

 

via SCOTUS: Silence can be used against defendant who didn’t claim privilege in voluntary meeting – ABA Journal.

Leave a comment

Filed under civil rights, courts, legal decision, Supreme Court

Gene patents: Sup.Ct. provides a guide

Some time ago, I posted about a case about patenting genes.  In Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (2013), Myriad was trying to patent genes.  Their argument, in summary, was that because they isolated a gene, they had the right to patent it.  The question is really whether it is a product of nature or manmade.  Here, the Supreme Court stated some DNA genes could not be patented, while another was.

The decision explained under what circumstances DNA can be patented and cannot be patented.  The DNA (BRCA1 and BRCA2) in this case involved genes which can involve mutations that increase the likelihood of breast cancer.  Regarding these genes, the Supreme Court ruled against the patent because it held that merely isolating the DNA gene does not make the DNA segment patent eligible.

The Supreme Court explained that Myriad isolated the gene and identified its precise location and genetic sequence.  Myriad did not create or alter the genetic information encoded in the genes (BRCA1 and BRCA2).  In addition, the Supreme Court noted that a new nonnatural occurring molecule is not created by isolating the DNA.  The patent focused on the information contained in the genetic sequence.  If another where to use the process, the same molecules in the genetic sequence would be seen.

However, the case also discussed a different synthetic gene, which the Supreme Court ruled could be patented.  Myriad created cDNA molecule by removing the introns from the DNA sequence.  The creation of cDNA resulted in a exons-only molecule.

 

Exons-only molecules are not naturally occurring.  Both parties agreed that cDNA differs from natural DNA in that the non-coding regions have been removed.  Even though the nucleotide sequence of cDNA is dictated by nature, the Supreme Court held:

the lab technician unquestionably creates something new when cDNA is made.  cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA form which it was derived.  As a result, cDNA is not a “product from nature” and is patent eligible under s101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA.  In that situation, a short strand of cDNA may be indistinguishable from natural DNA.

(italics added).  Consequently, the Supreme Court held that cDNA was patentable.

So what does this mean?  When genes are not altered or created, the gene is not patentable.  When a company isolates the DNA to figure out where it is in the gene and its sequence, the company is not creating a new DNA or altering the DNA.

So how can a gene be altered or created?  When the technician is creating a cDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring.

via Details on Association for Molecular Pathology v. Myriad Genetics, Inc. : SCOTUSblog.

Leave a comment

Filed under Uncategorized

Sup. Ct. allows Class Action Arbitration under FAA

In Oxford Health Plans LLC v. Sutter, No. 12-125 (2013), the Supreme Court ruled that an arbitrator can require a class action arbitration.

The gist of the case is that Sutter, a pediatrician, had a fee-for-services contract, which required arbitration for all contractual disputes.  When Oxford failed to promptly pay him and other physicians, Sutter filed a class action in New Jersey.  After filing, the court compelled arbitration.  The arbitrator concluded that the contract called for class action arbitration.  Sutter appealed to higher courts, but these appeals were denied.

The Supreme Court explained its decision as follows.  First, the parties agreed to go to arbitration in their contract.  Second, an arbitrator looks at the contract, makes a decision based on the contractual language, and this decision is binding.  Thirdly, and most importantly, the Supreme Court explained that judicial review is limited to whether the arbitrator interpreted the contract, not whether the court agreed with the decision.  Consequently, because the arbitrator considered the contract, the arbitrator’s decision stands.  They only way to vacate an arbitral decision is when an arbitrator strayed from his task of interpreting the contract.  In other words, not when he performed his task poorly.

As a note: In prior decisions (Steelworkers Trilogy/Misco) in the labor context under the Labor Management Relations Act (LMRA), the Supreme Court had ruled that a contractual language had to explicitly allow class actions in the arbitration clause.  Here, the arbitration clause did not do so.

This raises the question of how the Federal Arbitration Act (FAA) reconciles with LMRA arbitrations when they are both present.  In this case, only the FAA was involved.

via Workplace Prof Blog: SCOTUS OKs Class Arbitration.

Leave a comment

Filed under Appellate, courts, employment, labor, legal decision, Supreme Court, union, waiver

ACLU challenges NSA surveillance

On June 11th, the ACLU filed a lawsuit challenging the NSA’s surveillance program.  The ACLU lawsuit alleges that the program violates the First Amendment rights or free speech and association, the right to privacy under the Fourth Amendment, and that the surveillance program exceeds the authority provided by the Patriot Act.

ACLU, a customer of Verizon, made the following comments:

This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens.

It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation.  The program goes far beyond even the permissible limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.

The complaint can be accessed here.

via ACLU Files Lawsuit Challenging Constitutionality of NSA Phone Spying Program | American Civil Liberties Union.

Leave a comment

Filed under civil rights, electronic discovery, federal, Privacy Rights

Is a Fourth Branch in the horizon?

The Washington Post has a very interesting article, which highlights the increased deferment of cases to government agencies.  Instead of going through the court system, many cases are increasingly going through administrative agencies instead.

The question posed here is whether the right for court accessibility being challenged?  The Washington Post raises its concerns:

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is just not bigger, it is dangerously off kilter.  Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

The Washington Post reports that the vast majority of laws governing the United States are not passed by Congress but are issued as regulations.  A study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

The Washington Post also reports that a citizen is 10 times more likely to be tried by an agency instead of an actual court.  While federal judges conduct roughly 95,000 adjudicatory proceedings (including trials), federal agencies complete more than 939,000.

However, there are several items the Washington Post fails to mention.  The increasingly use of administrative agencies does not only fall upon the agency.

Take for example the individual’s decision to file a charge/claim.  Going through administrative agencies is more cost-effective.  Lawsuits in court have become more expensive.  Technology, electronic evidence, growth in documents and companies, among others, lead to a higher volume of issues and motions that increase the cost of litigation.  Given both alternatives, it makes sense that an individual might choose to go through an administrative agency.

For example, an individual going through the EEOC for a discrimination charge does not have to pay anything.  While an individual going through the court system may have to pay attorney fees and might be responsible for attorney fees.

 

 

Saying that, however, the issue of transparency and timing is highly concerning.  Administrative decisions are not public.  In addition, the length of an administrative decision might take several years.

via The rise of the fourth branch of government – The Washington Post.

1 Comment

Filed under civil rights, courts, District Court, federal, Judges, Pending Legislation, regulations