Lisa Soronen

Author Articles

What if a state legislature engages in intentional partisan gerrymandering but it doesn’t work or might not work in the future? Has it violated the First Amendment?

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

Following the redistricting Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that Republican Larry Hogan won the Sixth District beating his rival by 14 percent.

State-action immunity provides states and, in some instances, local governments immunity from federal antitrust liability. In Salt River Project Agricultural Improvement and Power District v. SolarCity the Supreme Court will decide whether a lower court’s refusal to rule state-action immunity applies to a particular entity may be appealed immediately or only after the case is fully litigated.

The Supreme Court has allowed the third travel ban to go into effect at least temporarily while two federal circuit courts of appeals review decisions from lower courts temporarily blocking enforcement of the travel ban. Even if the government loses before the appeals courts the travel ban will remain in effect until the Supreme Court rules on it or refuses to rule on it (unless the government doesn’t appeal to the Supreme Court).

The president’s second travel ban prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October.

The Fifth Amendment says no person shall be “compelled in any criminal case to be a witness against himself.” In Hays, Kansas v. Vogt the Supreme Court has agreed to decide whether the Fifth Amendment is violated when a public employee’s compelled, self-incriminating statements are used against him or her at a probable cause hearing rather than at a trial.

The State and Local Legal Center (SLLC) filed an amicus brief supporting the City of Hays arguing that the City should not be liable for the use of such statements because it has no control over how a prosecutor uses them. 

In April a federal district court issued a nationwide preliminary injunction preventing the Trump administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO). The same court has made that injunction permanent. 

Section 9 of the EO says that jurisdictions that refuse to comply with 8 U.S.C. 1373 are ineligible to receive federal grants. On its face Section 1373 prohibits local governments from restricting employee communication of immigration status information to Immigration and Customs Enforcement (ICE).

Congress created the Edward Byrne Justice Assistance Grants (Byrne JAG) in 2005 to provide “flexible” funding for state and local police departments. In April 2017 the Department of Justice (DOJ) required Philadelphia (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

Philadelphia sued Attorney General Jeff Sessions arguing that the City complies with 8 U.S.C. 1373. A federal district court in Philadelphia agreed and issued a preliminary injunction preventing Sessions from denying the City Byrne JAG grant funding.

Among other things, Sessions objected to a Philadelphia policy of not responding to Immigration and Customs Enforcement (ICE) civil immigration detainer requests asking the City to hold an arrested, undocumented person until ICE can pick them up, unless the request is accompanied by a judicial warrant.

California law requires that licensed pregnancy-related clinics disseminate a notice stating that publically-funded family planning services, including contraception and abortion are available. It also requires unlicensed pregnancy-related clinics to disseminate a notice they are unlicensed. The National Institute of Family and Life Advocates (NIFLA) operates 111 pregnancy centers in California. None offer abortions or abortion referrals; only 73 are licensed.

In NIFLA v. Becerra NIFLA claims that both requirements violate the First Amendment Free Speech Clause. The Ninth Circuit disagreed.

In Minnesota Voters Alliance v. Mansky the Supreme Court will decide whether banning political apparel at polling places violates the First Amendment. At least eight states (Delaware, Kansas, Montana, New York, South Carolina, Tennessee, Texas, and Vermont) other than Minnesota have enacted similar bans.

What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for different, legitimate reason? In Lozman v. City of Riviera Beach the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights.

Fane Lozman lived in a floating house in the Riviera Beach Marina. The City proposed to redevelop the marina using eminent domain and Lozman became “an outspoken critic” regularly criticizing the mayor and city council at council meetings. At a city council meeting Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. Lozman was not ultimately charged with disorderly conduct or resisting arrest.

Echoing his 2015 dissenting opinion in Glossip v. Gross, where the Supreme Court upheld Oklahoma’s three-drug lethal injection protocol, Justice Breyer asked the Court to reconsider the constitutionality of capital punishment in his concurring opinion in Dunn v. Madison.

Vernon Madison was sentenced to the death for the 1985 murder of a police officer. In 2016 he argued he was no longer competent to be executed due to a series of strokes. His psychologist and the state’s psychologist agree that Madison understands that he is being executed in retribution for murder. But he doesn’t remember killing anyone.

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