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Next month, the U.S. Supreme Court will consider two cases involving partisan gerrymandering. One case, Benisek v Lamone, challenges a Maryland congressional district, while the other, Rucho v Common Cause, challenges North Carolina’s congressional map.

While the Court has previously been unable to come up with a workable standard to determine when partisan gerrymandering runs afoul of the U.S. Constitution, the composition of the Court is different this time around.  How the high court decides these cases is likely to be instructive to everyone involved in the upcoming round of redistricting in the fifty states.

Supreme Court and Redistricting

The Supreme Court has consistently held that racial gerrymanders are unconstitutional; however, it has failed to establish a legal standard for determining when redistricting maps drawn to favor a particular political party should be deemed illegal.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court held that the courts could consider political gerrymandering claims after the majority concluded that it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided.”

In Vieth v. Jubelirer, 541 U.S. 267 (2004), the Court reversed course when a four-member plurality held that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. Over the past several years, the Supreme Court has managed to sidestep several partisan gerrymandering claims. Most recently, in Gill v. Whitford, 585 U. S. ____ (2018), the Court ruled that the plaintiffs failed to demonstrate Article III standing because they had not shown any specific and individualized injury to their right to vote.

Lamone v Besinek

The plaintiffs, a group of Republican voters, filed a complaint in the U.S. District Court for the District of Maryland challenging the congressional redistricting plan enacted by the Maryland General Assembly following the 2010 Census. The suit alleged that the district plan was a partisan gerrymander in violation of the right to representation guaranteed by Article 1, Section 2 of the U.S. Constitution and the protection of political association under the First Amendment.

The case has already been before the Court twice. Last term, the Supreme Court issued a per curiam decision holding that the three-judge district court’s denial of the injunction was not improper. However, the justices failed to reach the issue of the gerrymandering. On remand a second time, the district court ruled that the redistricting map violated the Constitution, setting up the current Supreme Court appeal.

This time around, the Supreme Court has agreed to consider the following questions:

In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

Rucho v Common Cause

Common Cause challenges a map that benefited Republicans, allowing the party to win ten of thirteen districts after the redistricting took effect. The plaintiffs allege that the map constitutes a partisan gerrymander in violation of Article I of the Constitution, the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

While Gill v. Whitford was pending before the Supreme Court, a three-judge district court invalidated North Carolina’s 2016 congressional districting map as a partisan gerrymander. After deciding Gill, the Supreme Court vacated that decision and remanded for further consideration in light of Gill.

On remand, the district court concluded that the plaintiffs had standing, holding:

[We] conclude that, under the test set forth in Gill, at least one Plaintiff registered to vote in each of the thirteen districts in the 2016 Plan has standing to assert an Equal Protection challenge to each of those districts. In particular, such Plaintiffs introduced evidence establishing that each of their districts is ‘packed or cracked’ and, as a result, that their votes ‘carry less weight than [they] would carry in another, hypothetical district.’ We further conclude that Gill did not call into question — and, if anything, supported — this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment.

The court went on to establish justiciable standards for partisan gerrymandering claims and conclude that the plan constituted an illegal partisan gerrymander. As the court explained:

Legislative Defendants drew a plan designed to subordinate the interests of non-Republican voters not because they believe doing so advances any democratic, constitutional, or public interest, but because, as the chief legislative mapdrawer openly acknowledged, the General Assembly’s Republican majority ‘think[s] electing Republicans is better than electing Democrats.’ But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, ‘those who govern should be the last people to help decide who should govern.’ Indeed, ‘the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.

On appeal, the Supreme Court has agreed to consider the following questions:

(1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.

Oral arguments in both cases are scheduled for March 26, 2019. A decision is expected before the term ends in June. We encourage readers to check back for updates.

The post Two Partisan Gerrymandering Cases Heard in March Will Impact Redistricting 2020 appeared first on Constitutional Law Reporter.

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In Davis v Bandemer, 478 U.S. 109 (1986), the U.S. Supreme Court held that held partisan gerrymandering claims were justiciable. However, the justices failed to agree on a legal standard to address them.

Facts of the Case

In 1981, the Indiana Legislature reapportioned its districts pursuant to the 1980 census. At that time, there were Republican majorities in both the House and the Senate. The reapportionment plan provided 50 single-member districts for the Senate and 7 triple-member, 9 double-member, and 61 single-member districts for the House. The multimember districts generally included the State’s metropolitan areas.

In 1982, appellee Indiana Democrats filed suit against state officials, alleging that the 1981 reapportionment plan constituted a political gerrymander intended to disadvantage Democrats, and that the particular district lines that were drawn and the mix of single-member and multimember districts were intended to and did violate their right, as Democrats, to equal protection under the Fourteenth Amendment.

In November 1982, before the case went to trial, elections were held under the new plan. Democratic candidates for the House received 51.9 percent of votes cast statewide, but only 43 out of the 100 seats to be filled. Democratic candidates for the Senate received 53.1 percent of the votes cast statewide, and 13 out of the 25 Democratic candidates were elected. In Marion and Allen Counties, both divided into multimember House districts, Democratic candidates drew 46.6 percent of the vote, but only 3 of the 21 Democratic candidates were elected. Subsequently, relying primarily on the 1982 election results as proof of unconstitutionally discriminatory vote dilution, the District Court invalidated the 1981 reapportionment plan, enjoined appellants from holding elections pursuant thereto, and ordered the legislature to prepare a new plan.

Majority Decision

The Court reversed. By a vote of 6-3, the Court held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause.” Justice Byron White wrote on behalf of the majority, which included Justices William Brennan, Thurgood Marshall, Harry Blackmun, Lewis Powell, and John Paul Stevens. In support of the court’s ability to consider partisan gerrymandering claims, Justice White wrote:

Here, none of the identifying characteristics of a nonjusticiable political question are present. Disposition of the case does not involve this Court in a matter more properly decided by a coequal branch of the Government. There is no risk of foreign or domestic disturbance. Nor is this Court persuaded that there are no judicially discernible and manageable standards by which political gerrymandering cases are to be decided. The mere fact that there is no likely arithmetic presumption, such as the “one person, one vote” rule, in the present context does not compel a conclusion that the claims presented here are nonjusticiable. The claim is whether each political group in the State should have the same chance to elect representatives of its choice as any other political group, and this Court declines to hold that such claim is never justiciable. That the claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability

By a vote of 7-2, the Court went on to hold that the District Court erred in holding that appellees had alleged and proved a violation of the Equal Protection Clause. According to the Court, although the apportionment law may have had a discriminatory effect on the Democrats, it was not “sufficiently adverse” to run afoul of the Constitution. 

“A threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. The District Court’s findings of an adverse effect on appellees do not surmount this threshold requirement,” Justice White wrote. “The mere fact that an apportionment scheme makes it more difficult for a particular group in a particular district to elect representatives of its choice does not render that scheme unconstitutional.”

Dissent

Justice Sandra Day O’Connor authored an opinion that concurred in part and dissented in part. She was joined by Chief Justice William Burger and Justice William Rehnquist. Justice O’Connor argued that partisan gerrymandering claims are non-justiciable, writing:

The Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims, and does not confer group rights to an equal share of political power. … [Members]of the major political parties cannot claim that they are vulnerable to exclusion from the political process, and it has not been established that there is a need or a constitutional basis for judicial intervention to resolve political gerrymandering claims. The costs of judicial intervention will be severe, and such intervention requires courts to make policy choices that are not of a kind suited for judicial discretion. Nor is there any clear stopping point to prevent the gradual evolution of a requirement of roughly proportional representation for every cohesive political group. Accordingly, political gerrymandering claims present a nonjusticiable political question.

The post Davis v Bandemer Held Courts Can Decide Partisan Gerrymandering Claims appeared first on Constitutional Law Reporter.

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The U.S. Supreme Court has agreed to hear its first major Second Amendment case in a decade. The case, New York State Rifle & Pistol Association v City of New York, involves a New York City gun-control law that prohibits transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits.

Facts of New York State Rifle & Pistol Association v City of New York

New York City prohibits city residents from possessing a handgun without a license. The only license the City makes available to most residents is a “premises” license that allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city.

The plaintiffs sought to remove handguns from the licensed premises for the purposes of going to shooting ranges and engaging in target practice outside New York City. Another plaintiff also sought to transport his handgun to a second home in upstate New York. These plaintiffs, along with the New York State Rifle & Pistol Association, filed suit in the Southern District of New York, seeking a declaration that the restrictions imposed by the gun control law were unconstitutional and an injunction against its enforcement.

The district court determined that the rule “merely regulates rather than restricts the right to possess a firearm in the home and is a minimal, or at most, modest burden on the right.” The Second Circuit Court of Appeals affirmed. Applying intermediate scrutiny, the court held: “The burdens imposed by the Rule do not substantially affect the exercise of core Second Amendment rights, and the Rule makes a contribution to an important state interest in public safety substantial enough to easily justify the insignificant and indirect costs it imposes on Second Amendment interests.”

Arguments Before the Supreme Court

The Supreme Court has agreed to consider the following question: “Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.”

The plaintiffs argue that the Second Circuit’s decision forces them to choose between their constitutional right to travel or their right to keep and bear arms. “While this court has declared that the right to bear arms is not ‘a second-class right,’ many local governments and lower courts continue to treat it as such,” former U.S. solicitor general Paul Clement argued on their behalf. “Indeed, though the city’s bizarre transport ban is one of a kind, it is exemplary of a broader push by local governments to restrict Second Amendment rights through means that would never fly in any other constitutional context.”

Meanwhile, New York City officials defend the travel restriction. “Unlike golf clubs and musical instruments, firearms present public safety risks that the city has a legitimate interest in protecting against,” they told the court. “Limiting their possession and use in public minimizes the risk of gun violence.”

Arguments aren’t likely be held until the court’s next term, which starts in October.

The post Supreme Court Agrees to Hear Second Amendment Case appeared first on Constitutional Law Reporter.

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In Richmond Newspapers Inc v Virginia, 448 U.S. 555 (1980), the U.S. Supreme Court held that the right to attend criminal trials was “implicit in the guarantees of the First Amendment.”

Facts of Richmond Newspapers Inc v Virginia

At the commencement of a defendant’s fourth trial on a murder charge (his conviction after the first trial having been reversed on appeal, and two subsequent retrials having ended in mistrials), the Virginia trial court granted the defense counsel’s motion that the trial be closed to the public without any objections having been made.

Later that same day, however, the trial judge granted the request of the appellants, a newspaper and two of its reporters who were present in the courtroom, for a hearing on a motion to vacate the closure order. Appellants’ counsel contended that constitutional considerations mandated that, before ordering closure, the court should first decide that the defendant’s rights could be protected in no other way. However, the trial judge denied the motion, saying that, if he felt that the defendant’s rights were infringed in any way and others’ rights were not overridden, he was inclined to order closure, and ordered the trial to continue “with the press and public excluded.”

The court ultimately found the defendant not guilty. Thereafter, the court granted appellants’ motion to intervene nunc pro tunc in the case, and the Virginia Supreme Court dismissed their mandamus and prohibition petitions and, finding no reversible error, denied their petition for appeal from the closure order.

Plurality Decision in Richmond Newspapers Inc v Virginia

By a vote of 7-1, the Court sided with Richmond Newspaper Inc. Chief Justice Warren E. Burger authored a plurality opinion.

In his opinion, Chief Justice Burger highlighted that criminal trials have historically been open to the public. He went on to explain that the Constitution affords protection against exclusion of the public from criminal trials. He wrote:

The First Amendment, in conjunction with the Fourteenth, prohibits governments from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. Plainly it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted; as we have shown, recognition of this pervades the centuries-old history of open trials and the opinions of this Court.

The Court rejected the argument that the right of the public to attend trials does not exist because the Constitution fails to spell it out. “The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated,” the Chief Justice wrote.

Dissent in Richmond Newspapers Inc v Virginia

Justice William Rehnquist authored a dissent. He argued that “if the prosecution and the defense find that they have adequate reasons to close a trial to the public, this should be upheld by the Courts.”

The post Richmond Newspapers Inc v Virginia Establishes Right to Attend Criminal Trials appeared first on Constitutional Law Reporter.

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In Helsinn Healthcare S.A. v Teva Pharmaceuticals USA Inc., 586 U. S. ____ (2019), the U.S. Supreme Court unanimously held that a commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under the Leahy-Smith America Invents Act (AIA). Pursuant to the on-sale bar, an invention is ineligible for patent protection if it has been offered for sale for over one year prior to the patent filing.

History of the On-Sale Bar

Historically, the on-sale bar applied to any sale of an invention, even if the sale was conducted privately. In Pfaff v. Wells Electronics, Inc., 525 U.S. 55 (1998), the Supreme Court held that two conditions must be satisfied for the on-sale bar to apply: first, “the product must be the subject of a commercial offer for sale,” and, second, “the invention must be ready for patenting.” 

In overhauling U.S. patent law, the AIA redefined prior art, including the on-sale bar. As amended by the AIA, 35 U.S.C. 102(b) now states:

A person shall be entitled to a patent unless— (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.

The question before the Court was whether changing the definition of the on-sale bar also altered whether it applied to confidential sales of the later-patented invention.

Facts of Helsinn Healthcare S.A. v Teva Pharmaceuticals USA Inc.

Helsinn’s flagship drug, Aloxi®, which is used to treat cancer patients suffering from chemotherapy-induced nausea and vomiting. The patents-in-suit purport to disclose novel intravenous formulations using unexpectedly low concentrations of palonosetron that were not taught by the prior art. All four of the patents-in-suit claim priority to a provisional patent application filed on January 30, 2003. Thus, the critical date for the on-sale bar is one year earlier, January 30, 2002.

In 2001, Helsinn entered a license agreement and a supply and purchase agreement with MGI Pharma. Under the agreements, MGI agreed to make upfront payments, and to pay future royalties if Helsinn’s products obtained approval from the U.S. Food and Drug Administration (FDA). The agreements, which described the 0.25 and 0.75 mg palonosetron doses, bound MGI to keep confidential petitioner’s proprietary knowledge related to the products, including the proposed novel formulations. As a public company, MGI was required to file a Form 8-K with the Securities and Exchange Commission (SEC) disclosing the agreements. While MGI attached the agreements to the filing, it redacted the covered palonosetron formulations, consistent with its contractual obligation. Helsinn and MGI simultaneously announced the agreements in a press release, again omitting the details of the palonosetron formulations.

In 2011, Teva Pharmaceuticals USA, Inc. (Teva) filed an abbreviated new drug application (ANDA) seeking FDA approval to market a generic version of Helsinn’s 0.25 mg palonosetron product. Its ANDA included a so-called “Paragraph IV” certification that Helsinn’s patents were invalid or would not be infringed by Teva’s generic version. Pursuant to the Hatch-Waxman Act, Helsinn filed a patent infringement action.

The District Court held that the AIA’s “on sale” provision did not apply because the public disclosure of the agreements did not disclose the 0.25 mg dose. The Federal Circuit reversed, holding that the sale was publicly disclosed, regardless of whether the details of the invention were publicly disclosed in the terms of the sale agreements.

Supreme Court’s Decision in Helsinn Healthcare S.A. v Teva Pharmaceuticals USA Inc.

The Supreme Court unanimously affirmed the Federal Circuit’s decision. “[A] commercial sale to a third party who is required to keep the invention confidential may place the invention ‘on sale’ under the AIA,” Justice Clarence Thomas wrote on behalf of the Court.

Citing Pfaff, the Court noted that its precedent interpreting patent statute in force immediately before the AIA supports the view that a sale or offer of sale need not make an invention available to the public to constitute invalidating prior art. It also highlighted that the Federal Circuit has expressly held that “secret sales” could invalidate a patent.

It further concluded that the AIA did not alter the meaning of the “on sale” bar. “In light of this settled pre-AIA precedent on the meaning of ‘on sale,’ we presume that when Congress reenacted the same language in the AIA, it adopted the earlier judicial construction of that phrase,” Justice Thomas wrote.

Finally, the Court concluded that the addition of the catchall phrase “or otherwise available to the public” is not enough of a change for the Court to conclude that Congress intended to alter the meaning of “on sale.” Justice Thomas explained:

As amicus United States noted at oral argument, if “on sale” had a settled meaning before the AIA was adopted, then adding the phrase “or otherwise available to the public” to the statute “would be a fairly oblique way of attempting to overturn” that “settled body of law.” Tr. of Oral Arg. 28. The addition of “or otherwise available to the public” is simply not enough of a change for us to conclude that Congress intended to alter the meaning of the reenacted term “on sale.”

The post Unanimous Court Rules Confidential Sales Can Invalidate Patent as Prior Art appeared first on Constitutional Law Reporter.

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In Murdock v Pennsylvania, 319 U.S. 105 (1943), the U.S. Supreme Court struck down a municipal ordinance that taxed the door-to-door sale of religious merchandise. According to the divided Court, such a tax violated the First Amendment’s Free Exercise Clause.

Facts of Murdock v Pennsylvania

The case involved an ordinance enacted by the City of Jeannette, Pennsylvania. It provided, in relevant part:

That all persons canvassing for or soliciting within said Borough, orders for goods, paintings, pictures, wares, or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the Burgess a license to transact said business and shall pay to the Treasurer of said Borough therefore the following sums according to the time for which said license shall be granted.

For one day $1.50, for one week seven dollars ($7.00), for two weeks twelve dollars ($12.00), for three weeks twenty dollars ($20.00), provided that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers or licensed merchants or dealers doing business in said Borough of Jeannette.

The Petitioners were “Jehovah’s Witnesses” who went door to door in the City of Jeannette distributing literature and soliciting people to “purchase” certain religious books and pamphlets. The “price” of the books was twenty-five cents each, the “price” of the pamphlets five cents each. In connection with these activities, petitioners used a phonograph on which they played a record expounding certain aspects of their views on religion.

None of the Petitioners obtained a license under the ordinance. Before they were arrested, each had made “sales” of books. Petitioners were convicted and fined for violation of the ordinance. Their judgments of conviction were sustained by the Superior Court of Pennsylvania, which rejected the argument that the ordinance deprived them of the freedom of speech, press, and religion guaranteed by the First Amendment. Petitions for leave to appeal to the Supreme Court of Pennsylvania were denied. 

Majority Decision in Murdock v Pennsylvania

By a vote of 5-4, the Court held the ordinance was unconstitutional as applied to religious activities. Justice William O. Douglas wrote on behalf of the Court.

In reaching its decision, the majority noted that religions are not entirely free from facing financial burdens from the government. Justice Douglas wrote:

We do not mean to say that religious groups and the press are free from all financial burdens of government. We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment

According to the majority, the ordinance was unconstitutional because a State may not impose a charge for the enjoyment of a right granted by the Federal Constitution. “The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down,” Justice Douglas wrote.

The majority further held that the fact that the ordinance was “nondiscriminatory” was immaterial. “The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers, and treats them all alike,” Justice Douglas explained. “Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in a preferred position.”

Dissent in Murdock v Pennsylvania

Justice Reed authored a dissent, in which Justices Frankfurter, Jackson, and Roberts joined. Justice Reed argued that religious groups should not be exempted. “This late withdrawal of the power of taxation over the distribution activities of those covered by the First Amendment fixes what seems to us an unfortunate principle of tax exemption, capable of indefinite extension,” he argued. “We had thought that such an exemption required a clear and certain grant. This we do not find in the language of the First and Fourteenth Amendments.

The post Murdock v Pennsylvania and the Free Exercise Clause appeared first on Constitutional Law Reporter.

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In Blockburger v United States, 284 U.S. 299 (1932), the U.S. Supreme Court clarified when two offenses are the same for purposes of Fifth Amendment’s Double Jeopardy Clause. Under the “same elements” test, a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.

Facts of Blockburger v United States

The defendant was charged with several violations of the Harrison Narcotics Act. All five counts involved the sale of morphine to the same purchaser. The jury returned a verdict against petitioner upon the second, third, and fifth counts only.The second count charged a sale on a specified day of ten grains of the drug not in or from the original stamped package; the third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package; the fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute. The court sentenced petitioner to five years’ imprisonment and a fine of $2,000 upon each count, the terms of imprisonment to run consecutively. The conviction was affirmed by the Second Circuit Court of Appeals.

In his appeal to the U.S. Supreme Court, the defendant raised two legal theories: 1. That the two sales charged in the second and third counts as having been made to the same person constitute a single, continuous offense; and 2. That the sale charged in the third count as having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written order of the purchaser, constitute but one offense, for which only a single penalty lawfully may be imposed.

Court’s Decision in Blockburger v United States

The Court held that the two sales of morphine were separate and distinct offenses under § 1 of the Narcotics Act, although buyer and seller were the same in both cases and little time elapsed between the end of the one transaction and the beginning of the other. Justice George Sutherland wrote on behalf of the unanimous court.

According to the Court, Section 1 of the Narcotics Act, forbidding sale except in or from the original stamped package, and § 2, forbidding sale not in pursuance of a written order of the person to whom the drug is sold, create two distinct offenses. Accordingly, the defendant could be prosecuted separately under each of the sections.

The Court further held that the defendant had not been subjected to double jeopardy. As Justice Sutherland explained:

Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

The Court acknowledged that the resulting punishment may be harsh, but stated that it was up to Congress, not the courts, to address it. “The plain meaning of the provision is that each offense is subject to the penalty prescribed; and, if that be too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction,” Justice Sutherland wrote. “Under the circumstances, so far as disclosed, it is true that the imposition of the full penalty of fine and imprisonment upon each count seems unduly severe; but there may have been other facts and circumstances before the trial court properly influencing the extent of the punishment.”

The post Blockburger v United States Established “Same Elements” Double Jeopardy Test appeared first on Constitutional Law Reporter.

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In Stokeling v United States, 586 U.S. ____ (2019), the U.S. Supreme Court held by a vote of 5-4 that the Armed Career Criminal Act’s (ACCA) elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance. According to the majority, it was inconsequential that the force involved in the necklace snatching was minimal.

Facts of Stokeling v United States

Petitioner Denard Stokeling was identified as a suspect in the burglary of a Miami restaurant. After conducting a criminal background check, police learned that Stokeling had previously been convicted of three felonies—home invasion, kidnapping, and robbery. When confronted, Stokeling admitted that he had a gun in his backpack. The detectives opened the backpack and discovered a 9-mm semiautomatic firearm, a magazine, and 12 rounds of ammunition.

Stokeling pleaded guilty in federal court to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The probation office recommended that Stokeling be sentenced as an armed career criminal under ACCA, which provides that a person who violates §922(g) and who has three previous convictions for a “violent felony” shall be imprisoned for a minimum of 15 years.

The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Stokeling objected that his prior Florida robbery conviction, which involved a necklace snatching, was not a “violent felony.” He argued it did not qualify under the first clause — the “elements clause” — because Florida robbery does not have “as an element the use, attempted use, or threatened use of physical force.” Under Florida law, robbery is defined as “the taking of money or other property . . . from the person or custody of another, . . . when in the course of the taking there is the use of force, violence, assault, or putting in fear. The Florida Supreme Court has explained that the “use of force” necessary to commit robbery requires “resistance by the victim that is overcome by the physical force of the offender.”

The District Court held that Stokeling’s actions during the robbery did not justify an ACCA sentence enhancement, but the Eleventh Circuit reversed. It rejected Stokeling’s argument that Florida robbery does not categorically require sufficient force to constitute a violent felony under ACCA’s elements clause.

Majority Decision in Stokeling v United States

The Supreme Court affirmed by a slim majority. Justice Clarence Thomas wrote the majority opinion, which was joined by Justices Brett M. Kavanaugh, Stephen G. Breyer, Samuel A. Alito Jr. and Neil M. Gorsuch.

“The force necessary to overcome a victim’s physical resistance is inherently ‘violent,’” Justice Thomas wrote. “This is true because robbery that must overpower a victim’s will — even a feeble or weak-willed victim — necessarily involves a physical confrontation and struggle.” He added: “The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself capable of causing physical pain or injury.”

In reaching its decision, the majority rejected Stokeling’s argument that “physical force” should be defined as that “reasonably expected to cause pain or injury.” It found his definition to be inconsistent with the degree of force necessary to commit common-law robbery. “It is clear that many states’ robbery statutes would not qualify as ACCA predicates under Stokeling’s reading,” Justice Thomas wrote. “His reading would disqualify more than just basic-robbery statutes. Departing from the common-law understanding of ‘force’ would also exclude other crimes that have as an element the force required to commit basic robbery. For instance, Florida requires the same element of ‘force’ for both armed robbery and basic robbery.”

Dissent in Stokeling v United States

Justice Sonia Sotomayor authored a dissenting opinion in which Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg and Elena Kagan joined. “Florida robbery, as interpreted and applied by the Florida courts, covers too broad a range of conduct to qualify as a ‘violent felony’ under the ACCA,” Justice Sotomayor argued. “Both the text and purpose of the ACCA—particularly as they have already been construed by our precedents—demonstrate why.”

Justice Sotomayor further argued that Florida’s robbery statute defines “force” to include essentially no force at all. “Florida law applies the label ‘robbery’ to crimes that are, at most, a half-notch above garden-variety pickpocketing or shoplifting,” Sotomayor wrote. “The court today does no service to Congress’ purposes or our own precedent in deeming such crimes to be ‘violent felonies’—and thus predicates for a 15-year mandatory-minimum sentence in federal prison.”

The post Stokeling v United States: Divided Court Rules Necklace Snatching Is Violent Felony Under ACCA appeared first on Constitutional Law Reporter.

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In Cohen v California, 403 U.S. 15 (1971), the U.S. Supreme Court held that the First Amendment prohibits states from criminalizing the public display of a single four-letter expletive, without a more specific and compelling reason than a general tendency to disturb the peace. The decision has been cited in numerous subsequent First Amendment cases.

Facts of Cohen v California

Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating a provision of California Penal Code § 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.” He was sentenced to 30 days imprisonment.

As detailed by the Court, Cohen was arrested on April 26, 1968, after being observed in the Los Angeles County Courthouse in the corridor outside of a municipal court wearing a jacket bearing the words “Fuck the Draft,” which were plainly visible. There were women and children present in the corridor.

Cohen later testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. Notably, he did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct, in fact, commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.

In affirming the conviction, the Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and that the State had proved this element because, on the facts of this case, (i)t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket. The California Supreme Court declined review by a divided vote.

Court’s Decision in Cohen v California

By a vote of 5-4, the Supreme Court reversed. “It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense,” Justice John Marshall Harlan II wrote on behalf of the majority.

In reaching its decision, the Court first highlighted that the conviction rested solely on Cohen’s speech rather than his conduct, which could be regulated if there is a sufficiently important governmental interest justifying a limitation on First Amendment freedom of speech. It went on to note that since there was no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft that his jacket reflected.

The Court then considered whether Cohen’s conviction fell within any of the narrow categories that would have allowed the government to prohibit Cohen’s speech, such as obscenity or fighting words. After concluding it did not, Justice Harlan summarized the remaining issue before it as follows:  

[W]hether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.

Citing that “[t]he constitutional right of free expression is powerful medicine in a society as diverse and populous as ours,” the majority answered no. Justice Harlan further wrote:

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Dissent in Cohen v California

Justice Harry Blackmun authored a dissenting opinion, which was joined by Justices Burger and Black. The dissenters argued that Cohen’s wearing of the jacket in the courthouse constituted conduct and, therefore, was not entitled to protection under the First Amendment.

The post Cohen v California — Freedom of Expression Protects Offensive Words appeared first on Constitutional Law Reporter.

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Justice Ruth Bader Ginsburg missed oral arguments this week as she recovers from surgery to remove cancerous growths from her lungs. She will, however, still participate in the cases by reading the briefs and transcripts of oral arguments.

The remaining justices heard oral arguments in six cases. One the cases, Knick v. Township of Scott, Pennsylvania, was already argued earlier this term. The case, which involves when property owners who allege that a local government has taken their property can bring a lawsuit in federal court, was scheduled for reargument to address a legal theory raised in the footnote of a brief and briefly raised during the first oral argument. The central issue this time around was whether a local government’s “refusal to guarantee compensation at the time of the invasion renders it ‘without just compensation’ and immediately actionable as an unconstitutional taking.”

Below is a brief summary of the other cases:

Thacker v. Tennessee Valley Authority: The Court will answer the following question: “Whether the U.S. Court of Appeals for the 11th Circuit erred by using a “discretionary-function exception” derived from the Federal Tort Claims Act, from which the Supreme Court generally has declined to borrow rules, instead of the test set forth in Federal Housing Authority v. Burr when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority), to immunize the Tennessee Valley Authority from the plaintiffs’ claims.”

Rimini Street Inc. v. Oracle USA Inc.: The case asks the Court to determine what costs are available to the prevailing party in a copyright suit. The question presented is: “Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.”

Home Depot U.S.A. Inc. v. Jackson: The case revolves around when class-action lawsuit may be removed to federal court. The two specific issues before the Court are: 1) Whether, under the Class Action Fairness Act – which permits “any defendant” in a state-court class action to remove the action to federal court if it satisfies certain jurisdictional requirements – an original defendant to a class-action claim that was originally asserted as a counterclaim against a co-defendant can remove the class action to federal court if it otherwise satisfies the jurisdictional requirements of the Class Action Fairness Act; and (2) whether the Supreme Court’s holding in Shamrock Oil & Gas Co. v. Sheets — that an original plaintiff may not remove a counterclaim against it — extends to third-party counterclaim defendants.

Azar v. Allina Health Services: The Department of Health and Human Services (HHS) must utilize notice-and-comment rulemaking to promulgate rules, requirements, or statements of policy that “establish[] or change[]” a “substantive legal standard” governing payment for services under the Medicare Act. The question before the justices is: “Whether 42 U.S.C. § 1395hh(a)(2) or § 1395hh(a)(4) required the Department of Health and Human Services to conduct notice-and-comment rulemaking before providing the challenged instructions to a Medicare administrative contractor making initial determinations of payments due under Medicare.”

Tennessee Wine & Spirits Retailers Association v. Blair: The Court considered its first 21st Amendment case in more than a decade. The specific issue is: “Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time.”

The post SCOTUS (Minus Justice Ginsburg) Hears Oral Arguments in Six Cases appeared first on Constitutional Law Reporter.

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