Capitol Comments

It has been three cases and nearly a decade in the making but the Supreme Court has finally ruled in Nieves v. Bartlett that the existence of probable cause defeats a First Amendment retaliatory arrest case…with one, small caveat. The State and Local Legal Center (SLLC) filed an amicus brief in favor of the broader ruling in this case.

While police officer Luis Nieves and Russell Bartlett have different versions of what happened at Artic Man, a weeklong winter sports festival in Alaska, even the Ninth Circuit agreed that Sergeant Nieves had probable cause to arrest Bartlett. Sergeant Nieves knew Bartlett had been drinking and talking loudly when he saw Bartlett stand close to another officer and the officer push Bartlett away. But Bartlett claimed Sergeant Nieves really arrested him in violation of his First Amendment free speech rights because he had refused to speak to Sergeant Nieves previously, which Bartlett reminded Sergeant Nieves of when he was being arrested.

With the number of jobs requiring an occupational license at an all-time high, The Council of State Governments (CSG), the National Conference of State Legislatures (NCSL), and the National Governors Association (NGA) have come together to assist states in improving their understanding of occupational licensure issues and enhancing licensure portability.

Currently, the number of jobs requiring an occupational license is nearly one in four. While state licensing is important for...

New Hampshire filed a lawsuit against the Department of Justice’s November 2018 opinion on the 1961 Wire Act on Feb. 15, 2019.  An amicus brief was filed by New Jersey and Michigan. The Michigan brief included signatories from the Michigan...

As some state legislatures pass laws contradicting Roe v. Wade in the hope the Supreme Court will overturn the 1973 decision, all eyes are on anything the Supreme Court has to say about abortion.  

In a per curiam (unauthored) opinion in a case decided without oral argument, Box v. Planned Parenthood, the Supreme Court held that Indiana’s law disallowing fetal remains to be incinerated along with surgical byproducts is constitutional. The Seventh Circuit had invalidated this provision.

Merck v. Albrecht is a simple issue contained in a long story.

In 2009 in Wyeth v. Levine the Supreme Court held that federal law preempts state law failure to warn claims that a drug manufacturer failed to change a drug label if there is “clear evidence” the Food and Drug Administration (FDA) would not have approved the label change. In Merck v. Albrecht a unanimous Supreme Court held that a judge rather than a jury determines if the FDA would have approved the change.

The federal Food, Drug, and Cosmetic Act (FDCA) provides no federal remedy for unsafe and ineffective drugs but state law may in the form of a failure to warn claim. The FDA allows manufacturers to change warnings on drug labels when newer drug safety information becomes available. The Supreme Court has held if the FDA would not have approved a drug label change, which a state failure to warn law would have required, the FDCA preempts the state law claim.

What will invariably get everyone’s attention about this case is it is the second 5-4 decision where Justice Gorsuch has joined the four more liberal Justices to rule in favor of a tribe. And a ruling in the Court’s most interesting tribal case of the term is yet to come. But none of this should distract from the holding of this case.    

The Supreme Court answered yes to the question in Herrera v. Wyoming of whether an old treaty allowing Native Americans to hunt on federal land is still valid. According to an amicus brief filed by the Crow Tribe “[a]t least nineteen tribes, in at least a dozen treaties, reserved for themselves the right to hunt on Federal lands away from their respective reservations.”

In 1868 the Crow Tribe ceded most of its territory in what is now Montana and Wyoming to the United States in exchange for an agreement the Crow could “hunt on the unoccupied lands of the United State.” Clayvin Herrera invoked this treaty to defend against a charge of violating state law by off-season hunting in Bighorn National Forest in Wyoming.

In a 5-4 opinion the Supreme Court held that the treaty’s hunting rights survived Wyoming’s statehood and that lands in the Bighorn National Forest aren’t categorically “occupied” because they are in a national reserve.

CSG Midwest

Indiana Gov. Eric Holcomb signed a sweeping gambling expansion into law in May, legalizing sports betting at the state’s casinos and “racinos” (racetracks with casino games), as well as on mobile devices.

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court will decide whether groundwater is subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements under the Clean Water Act (CWA). The State and Local Legal Center (SLLC) filed an ...

CSG Midwest
Prison overcrowding is one of the most persistent and confounding problems facing state criminal justice systems, and the issue is especially pertinent in the Midwest — home to three of the nation’s five most overcrowded prison systems.  ...
CSG Midwest
When a health consumer receives care outside of an insurer’s network of providers, he or she may receive a surprisingly high medical bill, and face the prospects of paying unexpectedly high out-of-pocket costs. 
These situations are not uncommon, and often not the fault of the health consumer — for example, he or she requires immediate emergency care, or an out-of-network provider is part of a larger team of physicians providing complex medical treatment.
As evidenced in recent polling data and new state laws, “surprise billing” has become a widespread concern among health care consumers and policymakers alike. In a poll conducted last year by the Kaiser Family Foundation, two-thirds of Americans said they were either “very worried” or “somewhat worried” about being able to afford their own or a family member’s unexpected medical bills.
The Commonwealth Fund, meanwhile, has been tracking the spread of laws to protect individuals from certain types of “surprise billing.” By the end of 2018, the number of states with such laws had reached 25: nine with comprehensive laws (including Illinois in the Midwest) and 16 with “partial protections” (including Indiana, Iowa and Minnesota).

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