Capitol Comments

For the most part and for now, Attorney General Jeff Session’s memo defining ”sanctuary jurisdictions” per President Trump’s sanctuary jurisdictions executive order (EO) returns the law to what it was before the EO.   

Per the EO, so-called sanctuary jurisdictions were afraid the federal government was going to take away all federal grant funding if, among other things, they did not comply with warrantless, voluntary Immigration and Customs Enforcement (ICE) detainers, which instruct jails to detain undocumented persons after they may be otherwise free to go so that ICE may pick them up and deport them.

Many cities and counties, even those that don’t label themselves sanctuary jurisdictions, don’t respond to warrantless ICE detainers because numerous courts have held that doing so violates the Fourth Amendment.

Cooper v. Harris raises an issue litigated over and over since the 2010 census. Challengers claim the North Carolina legislature unconstitutionally packed minority voters into a few legislative districts to lessen their ability to influence races in other districts. The Supreme Court agreed holding 5-3 that a North Carolina District Court correctly ruled that North Carolina relied too heavily on race in designing two majority-minority congressional districts.

The Supreme Court has held that per the Equal Protection Clause if the use of race predominates in redistricting the district’s design must be “narrowly tailored” to serve a “compelling interest.” Complying with Section 2 of the Voting Rights Act (VRA), which prohibits vote dilution— “dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters”—is a compelling interest. A “strong basis in evidence” is needed to show the VRA requires race-based districting.  

In Kindred Nursing Centers v. Clark the Supreme Court held 7-1 that an arbitration agreement entered into by a power of attorney may still be valid even if the power of attorney doesn’t specifically say the representative may enter into arbitration agreements.

Beverly Wellner and Janis Clark moved their husband and mother, respectively, into a nursing home using their powers of attorney. Both wanted to sue the nursing home in court after their relative died. But both had signed contracts stating that any claims would be resolved through arbitration.

The Kentucky Supreme Court concluded that Wellner’s power of attorney wasn’t broad enough to allow her to enter into an arbitration agreement but Clark’s was. Regardless, the court held that both arbitration agreements were invalid because “a power of attorney could not entitle a representative to enter into an arbitration agreement without specifically saying so.” According to the Kentucky Supreme Court, this is because the right to a jury trial under the Kentucky Constitution is the only right declared “sacred” and “inviolate.”

The U.S. Supreme Court has refused to review the Fourth Circuit’s decision holding that North Carolina’s voter ID law is unconstitutional and violates the Voting Rights Act.

The Fourth Circuit ruling received a lot of attention because in a sharply worded opinion, which overruled a district court decision, it held the North Carolina’s voter ID law intentionally discriminates against black voters. Most courts which have struck down voter ID laws have done so on the grounds they have a disparate impact on minority voters.  

Imagine how often when police officers are deciding whether to arrest someone they are told a version of a story they don’t find believable. In a Supreme Court amicus brief in District of Columbia v. Wesby the State and Local Legal Center (SLLC) argues that the D.C. Circuit erred by applying an inflexible rule that when officers are making arrest decisions they must believe a suspect’s version of the story, even when circumstantial evidence indicates otherwise.

In this case police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.

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