Lisa Soronen

Author Articles

The issue the Supreme Court will decide in McDonough v. Smith is whether the statute of limitations for a due process fabrication of evidence claim begins to run when the criminal proceedings terminate in the defendant’s favor, or when the defendant becomes aware of the tainted evidence and its improper use.

Edward McDonough, former Democratic Commissioner of Rensselaer County Board of Elections, approved forged absentee ballot applications which he claims he didn’t know had been falsified. Youel Smith investigated and prosecuted McDonough. McDonough claims Smith “engaged in an elaborate scheme to frame McDonough for the crimes by, among other things, fabricating evidence.” After two trials, McDonough was ultimately acquitted.

Just before three years passed since McDonough was acquitted he sued Smith under Section 1983 for violating his due process rights by fabricating evidence and using it against him. Section 1983 allows citizens to sue state and local government officials in federal court for constitutional violations.

In The Law of Trusts and Trustees, George Gleason Bogert describes trusts as a “legal abstraction: a fiction created to represent the tripartite relationship among a settlor, a trustee, and a beneficiary.” The debatable location of a trust makes it difficult for courts to agree which jurisdictions may tax a trust’s income. For example, what if only a trust beneficiary is located in the state, may the state tax the trust’s income? 

In North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust the Supreme Court will decide whether the Due Process Clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency.

Most, if not all, states have adopted “implied consent” laws where drivers may be tested if police have probable cause to suspect they have been driving while intoxicated. Drivers may withdraw consent and refuse to take a test, subject to penalties. In Birchfield v. North Dakota (2016) the Supreme Court held that generally police must obtain a warrant to require a blood test (versus a breath test) where officers have probable cause.

But what if a driver is unconscious and unable to withdraw consent to a blood test (and unable to take a breath test)? Wisconsin and 28 other states allow warrantless blood draws of unconscious drivers where police have probable cause to suspect drunk driving.

The question the Supreme Court will decide in Mitchell v. Wisconsin is whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

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.

After turning down countless petitions challenging state and local restrictions on guns the U.S. Supreme Court has finally agreed to review the constitutionality of a gun law. In New York State Rifle & Pistol Association Inc. v. City of New York, New York the Supreme Court will decide whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel. The Second Circuit held the law is constitutional on all accounts.

A New York City administrative rule allows residents to obtain a “carry” or “premises” handgun license. The “premises” license allows a licensee to “have and possess in his dwelling” a pistol or revolver. A licensee may only take his or her gun to a shooting range located in the city. Challengers want to bring their handgun to their second home and to target practice outside the city.

In a per curiam (unauthored) unanimous opinion in City of Escondido v. Emmons the Supreme Court granted one police officer qualified immunity and instructed the Ninth Circuit to decide again whether another officer should have been granted qualified immunity. As it has done many times before, the Supreme Court criticized the Ninth Circuit for defining the right at issue (here to be free from excessive force) at too high a level of generality.

In April 2013 police arrested Maggie Emmons’ husband at their apartment for domestic violence. A few weeks later, after Maggie’s husband had been released, police received a 911 call from Maggie’s roommate’s mother, Trina. While Trina was on the phone with her daughter she overheard Maggie and her daughter yelling at each other and Maggie’s daughter screaming for help.

When the officers knocked on the door no one answered but they were able to try to convince Maggie to open the door by talking to her through a side window. An unidentified male told Maggie to back away from the window. Officer Craig was the only officer standing outside the door when a man walked out of the apartment. Officer Craig told the man not to close the door but he did and he tried to brush past Officer Craig. Officer Craig stopped him, took him to the ground, and handcuffed him. The man was Maggie’s father, Marty Emmons. He sued Officer Craig and Sergeant Toth, another officer at the scene, for excessive force.

In an amicus brief in PDR Network, LLC v. Carlton & Harris Chiropractic Inc. the State and Local Legal Center (SLLC) argues that federal courts should be able to refuse to apply federal agency orders which they deem inapplicable even if the orders are covered by the Hobbs Act. While case sounds obscure, numerous Federal Communications Commission (FCC) orders are covered by the Hobbs Act including the small cell order, which preempt local regulations to facilitate the deployment of small cells for 5G.

The Hobbs Act vests the federal courts of appeals with “exclusive jurisdiction” to “enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain orders made by the FCC and orders of the Secretary of Agriculture, Secretary of Transportation, Federal Maritime Commission, Atomic Energy Commission, and others.

According to one lower court the Hobbs Act “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows uniform, nationwide interpretation of the federal statute by the centralized expert agency.”

A federal district court has held that a question about citizenship may not be included in the 2020 census. The Trump administration is likely to appeal this ruling to the Second Circuit, and it is likely the Supreme Court will ultimately resolve the dispute. Additional challenges to including this question have been brought but not yet decided.  

Judge Furman summarizes the significance of having an accurate census for state and local governments in his 277-page opinion:  “[The census] is used to allocate hundreds of billions of dollars in federal, state, and local funds. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole.”

In American Legion v. American Humanist Society the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.

The State and Local Legal Center (SLLC) amicus brief argues the Supreme Court should rule the challengers have no standing to bring this case. The SLLC also argues the cross doesn’t violate the Establishment Clause and that the Court should come up with a single, clear test to evaluate the constitutionality of public displays.  

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line.

Last term in Gill v. Whitford the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. Instead, it held that the challengers failed to demonstrate they had standing to bring their case.

The Supreme Court has agreed to hear two partisan gerrymandering cases this term.

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