Lisa Soronen

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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.

After refusing to accept or reject petitions for months the Supreme Court has finally agreed to decide whether employers violate Title VII when they discriminate against employees on the basis of sexual orientation or transgender status. Among other things, Title VII prohibits discrimination “because of . . . sex.” 

Until 2017 all federal courts of appeals to consider the question had held Title VII does not protect employees on the basis of sexual orientation. This changed when the Seventh Circuit reversed itself in Hively v. Ivey Tech Community College concluding “discrimination of the basis of sexual orientation is a form of sex discrimination.”

Timbs v. Indiana has received a lot of attention because it deals with a controversial subject—civil asset forfeitures. But as a practical matter this case is unlikely to have much of an impact. What this case now requires under the federal constitution has long since been required under state constitutions.

 

In Timbs the Supreme Court held unanimously that the Eighth Amendment Excessive Fines Clause applies to states and local governments. This ruling is unsurprising given that the Supreme Court has “incorporated” almost all of the Bill of Rights against states and local governments since the Fourteenth Amendment was adopted in 1868.

 

The Supreme Court’s opinion explains why this case doesn’t change much. All 50 states constitutions have excessive fines clauses which apply to states and local governments—some for centuries. It is possible that some of these state constitutional provisions have been interpreted differently than the federal provision. But there is so little federal case law on what is an excessive fine that it is unlikely most interpretations of state constitutions contradict the scant federal case law.

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. The States and Local Legal Center (SLLC) amicus brief argues for the latter standard.

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.

In its amicus brief in Mitchell v. Wisconsin the State and Local Legal Center (SLLC) argues that when police officers encounter an unconscious motorist they have probable cause to believe is impaired it should be permissible for the motorist’s blood to be drawn without a warrant. Wisconsin and 28 other states allow this practice. 

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)? 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.

How often do you drive a vehicle not registered in your name? Every day? In Kansas v. Glover the Supreme Court will decide whether it is reasonable, under the Fourth Amendment, for an officer to suspect that the registered owner of a vehicle is the one driving it absent any information to the contrary.

Officer Mark Mehrer ran the license plate of a vehicle that was being driven lawfully. He discovered that the owner of the vehicle, Charles Glover, had a suspended license. He pulled the driver over and discovered he was in fact Charles Glover.

In Bucklew v. Precythe the Supreme Court ruled 5-4 that Missouri wasn’t required to execute Russell Bucklew using a drug he claimed would cause him less pain due to his unusual medical condition, cavernous hemangioma.

Bucklew was sentenced to death for killing a neighbor who was sheltering his former girlfriend and her children after she broke up with Bucklew. Cavernous hemangioma causes tumors to grow in Bucklew’s head, neck, and throat. He claims that the sedative Missouri intends to use in its lethal injection protocol will cause him feelings of suffocation and excoriating pain due to his disease for a longer amount of time than the alternative drug he suggests. He claims Missouri’s protocol is unconstitutional as applied to him. 

The Eighth Amendment disallows “cruel and unusual punishment.” The Supreme Court held in Glossip v. Gross (2015) that a state’s refusal to alter its lethal injection protocol may violate the Eighth Amendment if an inmate identifies a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.”

In December 2018 a federal district court declared the Affordable Care Act (ACA) individual mandate unconstitutional. It also declared the remaining provisions of the act “inseverable,” meaning also invalid. The court didn’t issue a nationwide injunction which would have had the effect of immediately ceasing all aspects of law.

In the district court litigation the Department of Justice (DOJ) didn’t defend the individual mandate. But it did argue that other provisions of the ACA, excluding the guaranteed-issue and community-rating requirements, which were intended to provide affordable health insurance for those with pre-existing conditions, were severable. Now DOJ has informed the Fifth Circuit that it has changed course and agrees with the lower court that the entire ACA was properly invalidated.

The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional. Before argument court watchers were focused on Chief Justice Roberts, but during argument Justice Kavanaugh stole the show.

In 1986 in Davis v. Bandemer six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination.

Most recently, last term, with Justice Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. The two cases before the Court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively. By almost any measure the gerrymanders were unapologetic and extreme.   

Now that the Court has five solidly conservative members many have speculated that these Justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question.

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