Government

One can’t help but wonder if the Supreme Court decided to hear Allen v. Cooper because it involves a pirate ship. The (not very glamorous) legal issue the Supreme Court will decide is whether states can be sued in federal court for copyright violations.

North Carolina owns a ship pirate Blackbeard captured, renamed Queen Anne’s Revenge, and sunk between 1717-18. In the late 1990s North Carolina permitted a private research and salvage firm to photograph the ship. North Carolina continued to own the shipwreck and its artifacts, and the company could make money from the sale of media related to the ship. Frederick Allen, who was hired by the salvage firm to take photos and videos of the ship, sued North Carolina for infringing on images Allen copyrighted.

The Eleventh Amendment protects states and state officials acting in their official capacity from being sued in federal court. Congress may abrogate sovereign immunity by making a clear statement of its intent and validly exercising congressional power. Allen claims North Carolina can be sued in federal court for infringing on his copyright because Congress abrogated states’ sovereign immunity in the Copyright Remedy Clarification Act. 

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must file charges with the Equal Employment Opportunity Commission (EEOC).

In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely...

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.

Franchise Tax Board of California v. Hyatt (Hyatt III) is a win for state sovereignty, albeit an obscure victory. In this case the Supreme Court overturned precedent to hold 5-4 that states are immune from private lawsuits brought in courts of other states.

Since 1993 Gilbert Hyatt and the Franchise Tax Board of California (FTB) have been involved in a dispute over Hyatt’s 1991 and 1992 tax returns. FTB claims that Hyatt owes California taxes from income he earned in California. Hyatt claims he lived in Nevada during the relevant time period. Hyatt sued FTB in Nevada claiming FTB committed a number of torts during the audit.

Predicting the outcome of a Supreme Court case based on oral argument is foolhardy. But unless the more liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) are able to pick up the vote of a more conservative Justice (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) it seems likely the 2020 census will contain a question about citizenship.

In March 2018 Secretary of Commerce Wilbur Ross issued a memorandum stating he would add the question. He claimed the Department of Justice (DOJ) wanted the data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups.

CSG Midwest
In January, Illinois Gov. J.B. Pritzker signed SB 3531...
CSG Midwest
A legal dispute in Indiana over private property rights and the public trust doctrine ended in February when the U.S. Supreme Court chose not to hear the case. In 2018, Indiana’s Supreme Court ruled that public use of the Lake Michigan shoreline extended to the lake’s “natural ordinary high water mark.” Some lakefront property owners argued that the “water’s edge” should instead be used as the legal dividing line. The Indiana justices disagreed: “At a minimum, walking below the natural [ordinary high water mark] along the shores of Lake Michigan is a protected public use.”

The Immigration Reform and Control Act (IRCA) states that any information contained in the Form I-9, which is used to verify a person’s eligibility to work in the United States, may only be used for limited federal enforcement. The question the Supreme Court will decide in Kansas v. Garcia is whether the IRCA preempts states from using information contained in the I-9 to prosecute a person under state law (in this case for identity theft).

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must exhaust administrative remedies by bringing formal charges with the Equal Employment Opportunity Commission (EEOC) (or equivalent state agency).

The question the Supreme Court will decide in Fort Bend County v. Davis is if an employee fails to exhaust administrative remedies with the EEOC before filing a lawsuit is the lawsuit barred. The State and Local Legal Center amicus brief argues the answer to this question is yes.

CSG South

On May 14, 2018, the United States Supreme Court — via a 6-3 decision in Murphy, Governor of New Jersey v. National Collegiate Athletic Association (Murphy v. NCAA) — overturned the 1992 Professional and Amateur Sports Protection Act (PASPA), a longstanding federal prohibition on professional and amateur single-game sports wagering. The Murphy v. NCAA case was closely followed by state governments across the country, as ending the prohibition could open up an additional source of revenue. On September 5, 2017, West...

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