Archive for June, 2014

Supreme Court sides with employers over birth control mandate

Monday, June 30th, 2014

BY ROBERT BARNES June 30 at 11:25 AM

The Supreme Court struck a key part of President Obama’s health-care lawMonday, ruling that some companies may refuse to offer insurance coverage of specific birth control methods if they conflict with the owner’s religious beliefs.

In a 5 to 4 ruling that pitted religious freedom against equal benefits for female workers, the court’s conservatives decided that the Religious Freedom Restoration Act (RFRA) gave employers the right to withhold certain birth control methods from insurance coverage.

The contraceptive mandate “clearly imposes a substantial burden” on the owner’s beliefs, Justice Samuel A. Alito Jr. wrote for the majority.

It was the first time that the court had decided that the federal law covers corporations, not just the “persons” referred to in its text.

Justice Ruth Bader Ginsburg read a dissent from the bench.

“Our cosmopolitan nation is made up of people of almost every conceivable religious preference,” Ginsburg said. “In passing RFRA, Congress did not alter a tradition in which one person’s right to exercise of her religion must be kept in harmony with the rights of her fellow citizens, and with the common good.”

The consolidated cases before the Supreme Court asked a question the court had never confronted: whether the Constitution or the Religious Freedom Restoration Act, which protects an individual’s exercise of religion, extends to secular, for-profit corporations and their owners.

The 1993 religious-freedom law prohibits the federal government from imposing a “substantial ­burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive means of achieving the interest.

Supreme Court: Partial Public Employees Can’t Be Required To Contribute To Unions

Monday, June 30th, 2014

The Supreme Court handed down its decision in Harris v. Quinn on Monday, saying partial public employees can’t be required to contribute to unions.

According to SCOTUSblog, the 5-4 ruling is a “substantial obstacle to expanding public employee unions, but it does not gut them.” SCOTUSblog also notes the case does not involve “full-fledge public employees,” but rather says that union bargaining fees cannot be imposed on employees that are not full public employees.

Justice Samuel Alito wrote the opinion in the ruling.

HuffPost’s Dave Jamieson reported earlier on why the impending decision had unions terrified:


On its surface, the case deals with home care workers in Illinois who care for the disabled. The plaintiff, Pamela Harris, serves as the caretaker to her son Josh, who suffers from a rare genetic syndrome. The elder Harris receives Medicaid funds to do so and essentially functions as a state employee.

Many state-supported home care workers in Illinois are represented by the union SEIU Healthcare Illinois-Indiana. Under the contract between the union and the state, all home care workers covered under the contract are required to pay a fee to SEIU to cover the expenses associated with bargaining, whether or not they want to be union members.

This arrangement avoids what unions commonly refer to as freeloading — that is, benefiting from the union’s work without helping to underwrite it. Since unions have to represent all the employees in a particular bargaining unit, they commonly seek requirements in their contracts that all workers pay such “fair share” fees.

Below, more from the AP:

WASHINGTON (AP) — The Supreme Court says public sector unions can’t collect fees from home health care workers who object to being affiliated with a union.

The justices on Monday said collecting the fees violates the First Amendment rights of workers who are not union members.

The ruling is a financial blow to labor unions that have bolstered their ranks in Illinois and other states by signing up hundreds of thousands of home health care workers.

The case was brought by a group of Illinois in-home care workers who said they didn’t want to pay fees related to collective bargaining. They claimed the “fair share fees” violate their constitutional rights by compelling them to associate with the union.

Lower courts had thrown out the lawsuit.

Read the ruling below:

Harris Et Al. v. Quinn, Governor of Illinois, Et Al by HuffPost Politics

How a Legal Practice Management Solution Can Save Your Firm

Friday, June 27th, 2014


Posted Jun 26, 2014 9:11 AM CDT

“The leading rule for the lawyer … is diligence. Leave nothing for tomorrow which can be done today. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.” -Abraham Lincoln

The American Bar Association’s Legal Technology Resource Center defines Legal Practice Managementas a system that provides attorneys with a convenient method of effectively managing client and case information, including contacts, calendaring, documents, and other specifics, while preventing having to enter duplicate data in conjunction with billing and other services. LPM is the hub in which the information storage and retrieval, and a firm’s finances are tracked and billed.

Today’s law firms are drastically different from those of the past. Technologies ranging from cloud-based software services to today’s bevy of mobile devices are allowing more and more lawyers to better manage their legal practices, the business of their practice, and their lives.

Legal Practice Management is often accomplished by using services that facilitate automation in law practices. These services share information with other members of the firm and remove errors by keeping everyone organized. Repetitive tasks and schedule reminders can also be programmed into these services to remove the need to burden a lawyer with non-billable work and having to remember every upcoming meeting.

LPM not only keeps lawyers and law firms organized, but it also tracks time on behalf of the lawyer. Rather than entering time every six minutes, a lawyer can use an LPM solution to track their time, apply the right billing rates and description, and even store notes about the work being done.

In a modern, fast-paced age where efficiency is currency and every billable moment counts, most firms will be able to benefit from some form of LPM; a unified and centralized interface where firm members can share information, matters, precedents, documents, and billing details. The days of index cards, file folders, and big clunky calendars have gone the way of the abacus. Useful tools in their day, but not the most efficient or most modern. This is the era of the smartphone, the tablet, and the laptop. Of wifi and the cloud. And legal practice management solutions live and thrive in this era. So too do the lawyers that use them in their daily practice.

Ultimately, legal practice management solutions do exactly what the name suggests: they offer innovative, intuitive, and ideal solutions for managing your law practice. They’re a time saver. A convenience. A competitive advantage. And an all-around great system for making sure that your practice not only runs well, but runs better.

To learn more about LPM solutions and how they can transform your firm and give you more billable time in a day, get this free whitepaper from Legal Practice Management solution Clio.

This content is advertising.

Supreme Court rejects stock-drop defense often used in 401(k) cases

Friday, June 27th, 2014

High court says ‘presumption of prudence’ shouldn’t be considered a special defense against lawsuits alleging breaches of fiduciary duty

By Robert Steyer

Jun 27, 2014 @ 11:01 am (Updated 11:12 am) EST

 The Supreme Court on Wednesday unanimously rejected a frequently used, successful defense by companies against stock-drop lawsuits filed by defined contribution plan participants.

In a 9-0 decision, the justices said a “presumption of prudence” invoked by employee stock option plans — based on nearly 20 years of federal court decisions — shouldn’t be considered a special defense against lawsuits alleging breaches of fiduciary duty.

“We hold that no such presumption applies,” wrote Justice Stephen Breyer in the opinion for Fifth Third Bancorp et al. vs. Dudenhoeffer et al. “Instead, ESOP fiduciaries are subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the (ESOP) fund’s assets.”


Rather than rely on the “defense-friendly” legal principle known as the Moench presumption, Mr. Breyer wrote that courts should evaluate stock-drop cases “through careful, context-sensitive scrutiny of a complaint’s allegations.”

The Supreme Court heard oral arguments in the Fifth Third case in April after the 6th U.S. Circuit Court of Appeals in Cincinnati had issued a different interpretation of the “presumption of prudence” principle than several other federal appeals courts.

These courts disagreed on the Moench presumption, articulated in 1995 by the 3rd U.S. Circuit Court of Appeals in Philadelphia, in Moench vs. Robertson. This principle gives a presumption of prudence to fiduciaries that offer company stock as an investment option in defined contribution plans.

Several federal appeals courts and federal district courts have issued rulings, citing the Moench presumption as applying to the motion-to-dismiss stage. The 6th Circuit said the Moench presumption should apply at the trial stage — a more relaxed standard for plaintiffs in stock-drop cases.

In Wednesday’s ruling, the Supreme Court vacated the 6th Circuit decision and remanded the case to the appeals court “for further proceedings consistent with this opinion.” Mr. Breyer cited several guidelines for the 6th Circuit to determine whether the Fifth Third case meets the standards to proceed to trial, including:

• “Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim” under Supreme Court rulings in two previous cases.

• “To state a claim for breach of the duty of prudence, a complaint must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.”

• “ERISA’s duty of prudence never requires a fiduciary to break the law, and so a fiduciary cannot be imprudent for failing to buy or sell stock in violation of insider trading laws.”

Mr. Breyer rejected the argument by Fifth Third Bancorp that a weakening of the Moench presumption would make ESOPs and DC plans more vulnerable to lawsuits.

“We do not believe that the presumption here is an appropriate way to weed out meritless lawsuits,” he wrote. “The proposed presumption makes it impossible for a plaintiff to state a duty-of-prudence claim … unless the employer is in very bad economic circumstances. Such a rule does not readily divide the plausible sheep from the meritless goats.”

Robert Steyer is a reporter with Pensions & Investments, a sister publication.

The U.S. Supreme Court Is Marching in Lockstep with the Police State

Friday, June 27th, 2014

The U.S. Supreme Court Is Marching in Lockstep with the Police State

By John W. Whitehead

June 23, 2014

“[I]f the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”—U.S. Supreme Court Justice William O. Douglas

The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet as I point out in my bookA Government of Wolves: The Emerging American Police State, Americans can no longer rely on the courts to mete out justice. In the police state being erected around us, the police and other government agents can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

These are the hallmarks of the emerging American police state: where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens.

A review of the Supreme Court’s rulings over the past 10 years, including some critical ones this term, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.

Police officers can use lethal force in car chases without fear of lawsuits.InPlumhoff v. Rickard (2014), the Court declared that police officers who used deadly force to terminate a car chase were immune from a lawsuit. The officers were accused of needlessly resorting to deadly force by shooting multiple times at a man and his passenger in a stopped car, killing both individuals.

Police officers can stop cars based only on “anonymous” tips.In a 5-4 ruling in Navarette v. California(2014), the Court declared that police officers can, under the guise of “reasonable suspicion,” stop cars and question drivers based solely on anonymous tips, no matter how dubious, and whether or not they themselves witnessed any troubling behavior. This ruling came on the heels of a ruling by the Tenth Circuit Court of Appeals in U.S. v. Westhoven that driving too carefully, with a rigid posture, taking a scenic route, and having acne are sufficient reasons for a police officer to suspect you of doing something illegal, detain you, search your car, and arrest you—even if you’ve done nothing illegal to warrant the stop in the first place.

Secret Service agents are not accountable for their actions, as long as they’re done in the name of security.InWood v. Moss(2014), the Court granted “qualified immunity” to Secret Service officials who relocated anti-Bush protesters, despite concerns raised that the protesters’ First Amendment right to freely speak, assemble, and petition their government leaders had been violated. These decisions, part of a recent trend toward granting government officials “qualified immunity”—they are not accountable for their actions—in lawsuits over alleged constitutional violations, merely incentivize government officials to violate constitutional rights without fear of repercussion.

Citizens only have a right to remain silent if they assert it.The Supreme Court ruled inSalinas v. Texas(2013) that persons who are not under arrest must specifically invoke their Fifth Amendment privilege against self-incrimination in order to avoid having their refusal to answer police questions used against them in a subsequent criminal trial. What this ruling says, essentially, is that citizens had better know what their rights are and understand when those rights are being violated, because the government is no longer going to be held responsible for informing you of those rights before violating them.

Police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside.InFlorida v. Harris(2013), a unanimous Court determined that police officers may use highly unreliable drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. In doing so, the justices sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. The ruling turns man’s best friend into an extension of the police state.

Police can forcibly take your DNA, whether or not you’ve been convicted of a crime.In Maryland v. King(2013), a divided Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA. Once again the Court sided with the guardians of the police state over the defenders of individual liberty in determining that DNA samples may be extracted from people arrested for “serious offenses.” While the Court claims to have made its decision based upon concerns of properly identifying criminal suspects upon arrest, what they actually did is open the door for a nationwide dragnet of suspects targeted via DNA sampling.

Police can stop, search, question and profile citizens and non-citizens alike.The Supreme Court declared inArizona v. United States(2012) that Arizona police officers have broad authority to stop, search and question individuals—citizen and non-citizen alike. While the law prohibits officers from considering race, color, or national origin, it amounts to little more than a perfunctory nod to discrimination laws on the books, while paving the way for outright racial profiling and destroying the Fourth Amendment.

Police can subject Americans to virtual strip searches, no matter the “offense.”A divided Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling inFlorence v. Burlington(2012), the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks. This “license to probe” is now being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches—some involving anal and vaginal probes—without any evidence of wrongdoing and without a warrant.

Immunity protections for Secret Service agents trump the free speech rights of Americans.The court issued a unanimous decision in Reichle v. Howards(2012), siding with two Secret Service agents who arrested a Colorado man simply for daring to voice critical remarks to Vice President Cheney. However, contrast the Court’s affirmation of the “free speech” rights of corporations and wealthy donors in McCutcheonv. FEC(2014), which does away with established limits on the number of candidates an entity can support with campaign contributions, and Citizens United v. FEC (2010) with its tendency to deny those same rights to average Americans when government interests abound, and you’ll find a noticeable disparity.

Police can break into homes without a warrant, even if it’s the wrong home. In an 8-1 ruling in Kentucky v. King(2011), the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes or apartments without a warrant. Despite the fact that the police in question ended up pursuing thewrongsuspect, invaded thewrongapartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by police.

Police can interrogate minors without their parents present.In a devastating ruling that could very well do away with what little Fourth Amendment protections remain to public school students and their families—the Court threw out a lower court ruling in Camreta v. Greene (2011), which required government authorities to secure a warrant, a court order or parental consent before interrogating students at school. The ramifications are far-reaching, rendering public school students as wards of the state. Once again, the courts sided with law enforcement against the rights of the people.

It’s a crime to not identify yourself when a policeman asks your name.InHiibel v. Sixth Judicial District Court of the State of Nevada(2004), a majority of the high court agreed that refusing to answer when a policeman asks “What’s your name?” can rightfully be considered a crime under Nevada’s “stop and identify” statute. No longer will Americans, even those not suspected of or charged with any crime, have the right to remain silent when stopped and questioned by a police officer.

The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases, turned away in recent years alone, have delivered devastating blows to the rights enshrined in the Constitution.

Legally owning a firearm is enough to justify a no-knock raid by police.Justices refused to hearQuinn v. Texas(2014) the case of a Texas man who was shot by police through his closed bedroom door and whose home was subject to a no-knock, SWAT-team style forceful entry and raid based solely on the suspicion that there were legally-owned firearms in his household.

The military can arrest and detain American citizens.In refusing to hearHedges v. Obama(2014), a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), the Supreme Court affirmed that the President and the U.S. military can arrest and indefinitely detain individuals, including American citizens. In so doing, the high court also passed up an opportunity to overturn its 1944 Korematsu v. United States ruling allowing for the internment of Japanese-Americans in concentration camps.

Students can be subjected to random lockdowns and mass searches at school.The Court refused to hear Burlison v. Springfield Public Schools(2013), a case involving students at a Missouri public school who were subjected to random lockdowns, mass searches and drug-sniffing dogs by police. In so doing, the Court let stand an appeals court ruling that the searches and lockdowns were reasonable in order to maintain the safety and security of students at the school.

Police officers who don’t know their actions violate the law aren’t guilty of breaking the law.The Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle(2012) in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions—tasering a pregnant woman who was not a threat in any way until she was unconscious—violated the Fourth Amendment.

When all is said and done, what these assorted court rulings add up to is a disconcerting government mindset that interprets the Constitution one way for the elite—government entities, the police, corporations and the wealthy—and uses a second measure altogether for the underclasses—that is, you and me.

Keep in mind that in former regimes such as Nazi Germany and the Soviet Union, the complicity of the courts was the final piece to fall into place before the totalitarian beast stepped out of the shadows and into the light. If history is a guide, then the future that awaits us is truly frightening.

Time, as they say, grows short.

Read more:The Gilmer Mirror – The U S Supreme Court Is Marching in Lockstep with the Police State

Supreme Court opinion on recess appointments

Thursday, June 26th, 2014
BY ROBERT BARNES June 26 at 11:18 AM
The Supreme Court ruled unanimously Thursday that President Obama lacked constitutional authority to make high-level government appointments at a time he declared the Senate in recess and unable to act on the nominations.

Obama made appointments to the National Labor Relations Board in January 2012 at a time when the Senate was holding pro forma sessions every three days precisely to thwart the president’s ability to exercise the power.

“When the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business,” that is sufficient from keeping the president to make recess appointments, Justice Stephen G. Breyer wrote for the court.

The court was interpreting the Constitution’s Recess Clause, which says the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.”

The case was a rarity in that the Supreme Court has never had reason to play referee on the issue before and has no precedent to rely on. While the current battle is between Obama and Senate Republicans, the tension has existed equally when a Republican has occupied the White House and Democrats objected to his appointments.

Read the decision

While the court was unanimous that Obama’s actions were unlawful, it was badly split on other questions the case raised, and narrowly favored an expansive view of the chief executive’s power.

Breyer and the court’s liberals, joined by Justice Anthony M. Kennedy, read the Constitution to give wide authority to the president to make recess appointments when the Senate was in recess — 10 days is the minimum, they decided. And they said that the vacancies did not have to arise during the time the Senate was away.

“That broader reading is reinforced by centuries of history, which we are hesitant to disturb,” Breyer wrote. The conservative dissenters, he said, “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”

Breyer and Kennedy were joined in that part of the opinion by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Justice Antonin Scalia disagreed strongly, signaling his displeasure by reading from the bench a statement accusing his colleagues of “judicial adventurism.”

“This issue has been the subject of a long-simmering interbranch conflict that we ought to resolve according to our best lights, rather than by deferring to an overreaching Executive Branch,” Scalia said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

As both sides noted, the justices had never been called upon to decide exactly what constitutes a recess, and every president since George Washington has used the power to make appointments to the highest levels of the military and executive and judicial branches.

There was more riding on the outcome before Senate Democrats late last year changed the filibuster rules to make it easier for the president’s nominees to be confirmed on a majority vote. But the conflict would be in play whenever one party controlled the executive branch and the other ruled the Senate.

It was the question of pro forma sessions that had prompted the case.

Senate Democrats started the pro forma sessions in 2007 to prevent President George W. Bush from making recess appointments. Despite encouragement from his advisers to challenge the legitimacy of the sessions, he declined.

But when Obama became president and the membership of the NLRB fell to two members because Senate Republicans blocked votes on the president’s three nominees, Obama took action. Despite the pro forma sessions, Obama took note of the Senate’s declaration that no business would be conducted and made his nominees recess appointees.

A bottling company in Washington state that lost an NLRB ruling challenged the legitimacy of the members, and a panel of the U.S. Court of Appeals for the D.C. Circuit went beyond the question of pro forma sessions to severely restrict the president’s power.

Judge David Sentelle said that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the president to decide what constitutes a recess, Sentelle said.

Additionally, the panel said the president has authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president’s ability to make use of the recess appointment power.

The case is NLRB v. Noel Canning.

Supreme Court strikes down abortion clinic buffer zone law

Thursday, June 26th, 2014




In a unanimous opinion, the Supreme Court struck down a Massachusetts law Thursday that set a 35-foot buffer zone around abortion clinics, saying it violates the First Amendment. Massachusetts had argued that the buffer zone, which anti-abortion protesters said violated their speech rights, keeps patients and clinic staff safer.

“The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests,” the court’s decision, by Chief Justice John Roberts, said. It conceded that Massachusetts has “legitimate inter­ests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities,” but ultimately “impose serious burdens on petition­ers’ speech, depriving them of their two primary methods of com­municating with arriving patients: close, personal conversations and distribution of literature.”


CRAIG MELVIN, 6/26/14, 10:35 AM ET

Two major rulings made in Supreme Court


The main plaintiff in the case, an elderly grandmother and self-described “sidewalk counselor” Eleanor McCullen, said in a statement Thursday, “I am delighted and thankful to God that the court has protected my right to engage in kind, hopeful discussions with women who feel they have nowhere else to turn.”

Abortion rights supporters had been pessimistic when the Supreme Court agreed to hear the case: There was no split in the lower courts, one usual prompt for the Supreme Court, and both the district court and the First Circuit Court of Appeals had ruled that the Massachusetts law was constitutional under the Supreme Court’s own precedent in a 2000 case.

“The law does not require that a patient run a public-sidewalk gauntlet before entering an abortion clinic,” the three-judge panel of the First Circuit had concluded, adding, “First Amendment rights do not guarantee to the plaintiffs (or anyone else, for that matter) an interested, attentive, and receptive audience, available at close-range.”

Things looked even bleaker for the law at oral arguments before the Supreme Court in January. Justice Samuel Alito, who was not on the high court when the Supreme Court upheld a similar law, suggested that the law discriminated against the anti-abortion viewpoint. And Chief Justice John Roberts, who also has not ruled on buffer zones while on the court, didn’t even say a word.

While Justices Sotomayor and Ginsburg signaled that they saw a public safety justification for the buffer zones, Justice Elena Kagan was more doubtful. “I’m a little hung up on why you need so much space,” she said at oral argument.

Justice Kennedy’s outrage at buffer zone laws as a First Amendment violation has long been on record; in Hill v. Colorado, in 2000, he wrote, “If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.”

The attorney for the protesters, Mark Rienzi, was eager to reposition anti-abortion protesters from potential aggressors to victims. He said the law put “people in prison for peaceful speech” and would entail “dragging Mrs. McCullen off to prison because she has a consensual conversation.”

“This decision shows a troubling level of disregard for American women, who should be able to make carefully considered, private medical decisions without running a gauntlet of harassing and threatening protesters,” said Cecile Richards, president of Planned Parenthood Federation of America, in a statement after the ruling.  “We are taking a close look at this ruling, as well as patient protection laws around the country, to ensure that women can continue to make their own health care decisions without fear of harassment or intimidation.”

According to a survey of members of the National Abortion Federation, 51% of facilities with a buffer zone said they saw criminal activity drop after it was put in place. Three quarters said it had “improved patient and staff access to the facilities.” In the same survey, 92% of facilities said they are concerned about their patients’ safety approaching the facility, said the group’s president, Vicki Saporta.

Vicki Saporta, president and CEO of the National Abortion Federation, called the decision “incredibly disappointing,” adding, “Anti-abortion groups would like you to think that they are merely engaging in quiet ‘counseling.’ But aggressive threats and intimidation, stalking patients from their cars to the door, and verbally and physically assaulting them is not counseling.”



Wednesday, June 25th, 2014

JUNE 25, 2014
Today the Supreme Court of the United States issued a ruling in the legal tussle between streaming TV service Aereo and major network broadcasters.
SCOTUS ruled that the decision of the second circuit, which upheld that Aereo was within the bounds of the Copyright Act, shall be reversed. It was a 6-3 decision, with Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissenting.
Aereo has stated publicly before that if this opinion came down, the startup was through. Considering that Aereo has received almost $100 million in funding over the past few years, that’s a pretty big loss for the startup.
According to SCOTUSblog’s report on the ruling, given by Supreme Court Justice Stephen Breyer, “the essence of the Aereo ruling is that Aereo is equivalent to a cable company, not merely an equipment provider.”
The idea is that Aereo’s one technological difference from other cable companies is that Aereo technology remains inert unless the user tunes it, as opposed to constantly streaming. But to the court, this single technological differentiation isn’t enough to call Aereo’s service private performance instead of public.
This particular case centers around the Transmit Clause, specifically whether or not Aereo’s service is a public or private performance. This is the strongest argument that broadcasters have had against the service, and has offered the greatest chance of shutting down the startup before it grows out of control.
The Issue At Hand
So what happened?
Aereo is a service built up of two products: one is a remote mini-antenna that is stored in one of Aereo’s server farms and rented by users, and the second is a DVR/cloud storage service to hold recorded shows. Aereo transcodes all of this content for use over the Internet, meaning that Aereo users can receive around 30 channels (with plenty of DVR space) in near live format for around $12 a month on any device. To be clear, the service never actually offers real live television, but users can record and transcode instantly to watch in nearly real time.

Inspiring Girls Through Google’s Made W/ Code
You can see why network broadcasters, who send their own signals for free but make a good portion of their revenue from cable package deals, might be threatened.
With this case, the broadcasters have argued that Aereo’s service constitutes a public performance. A public performance vs. a private performance is the difference between charging tickets to show a taping of a Lady Gaga performance, and singing a Lady Gaga song in the shower.
Since users view Aereo’s content live, many of them viewing it at the same time, the broadcasters believe that Aereo’s signal should be considered “public.”
Aereo, meanwhile, argues that each user is getting their own individual work of the content, which is streamed to them based on the users’ own commands. Technically, Aereo doesn’t “stream” anything to users. Users rent antennas — instead of buying one and setting it up on top of the TV — and control it themselves.
In 2007, Cablevision won a major case that set an important precedent in Aereo’s story. The Cablevision precedent essentially allows for cloud DVR storage, but has larger implications for the entire cloud storage industry.
The ruling said that a piece of video content watched live or recorded, whether stored in a box under the TV or in the cloud, still belongs to that individual user and is not considered a public performance. That’s because, like Aereo, Cablevision wasn’t sending each of its subscribers the same exact copy of a TV show at the same time, but rather each user was tuning and recording this content individually, with their own distinct (though almost identical) version.
Because of this precedent, it’s legal, for example, for 20,000 people to legally download a song from iTunes, upload it to Google Drive, and pull a single copy down from the cloud whenever they like. Aereo was built with this precedent in mind, and the broadcasters not only seek to defeat Aereo but to overturn Cablevision along with it. After all, that’s pretty much the only way for them to be successful.
In their briefing to the Supreme Court, the broadcasters argued that the streams recorded by Aereo’s users should be viewed on the aggregate, rather than individually counted. Nothing in the Transmit Clause or Copyright Act suggests that this is how we should measure public vs. private. In fact, if we did measure it this way, cloud storage companies would be pretty screwed.
However, Scalia did say that this ruling should not threaten other technology providers.
Meanwhile, broadcasters’ stocks are trading higher on the news.
A Little History
Aereo has been in legal hot water with broadcasters for more than a year. The first dispute originated in New York, where a big group of broadcasters sought a preliminary injunction against Aereo for what they believed to be copyright infringement under the Transmit Clause portion of the Copyright Act. They were denied, and some of the same broadcasters moved on to target Aereo on other markets.
In Boston, the company was hit with a similar lawsuit from Hearst Corporation and local broadcasters. Again, the Boston judge ruled in favor of Aereo, denying the preliminary injunction in that market. And then most recently, a Utah judge went against the grain by granting a preliminary injunction against Aereo service in Salt Lake City.
With lawsuits churning in multiple markets, Aereo’s most efficient method of defending against these broadcasters was to actually climb deeper in to the crevice. The company motioned for the Supreme Court to hear the case, which would theoretically put this particular matter to rest, though it would fail to stop broadcasters from trying other strategic moves in court altogether.
On April 22, the Supreme Court of the United States heard the case, and much of the summer has been spent waiting for a decisio

The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant District Court judgeship for Anderson, Shelby and Spencer counties

Wednesday, June 25th, 2014

Supreme Court of Kentucky
Chambers, State Capitol
Frankfort, Kentucky 40601

Contact: Leigh Anne Hiatt, Public Information Officer, Administrative Office of the Courts
Phone 502-573-2350, Cell 859-619-7916,

For Immediate Release

Judicial Nominating Commission announces nominees for judgeship in Anderson, Shelby and Spencer counties

FRANKFORT, Ky., June 25, 2014 – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant District Court judgeship for Anderson, Shelby and Spencer counties. The counties compose the 53rd Judicial District and the open seat is in the district’s 1st Division.

The three attorneys named as nominees to fill the vacancy are Robert M. Coots and Ruth Ann Hollan of Taylorsville and Betty A. Springate of Lawrenceburg.

Coots practices law with the Coots Law Office in Taylorsville. He earned a juris doctor from the University of Kentucky College of Law.

Hollan has served as the county attorney for Spencer County since 2003. She holds a juris doctor from the University of Louisville Louis D. Brandeis School of Law.

Springate most recently served as assistant county attorney and county attorney for Anderson County. She received a juris doctor from the University of Baltimore School of Law.

The vacancy was created when Judge Linda S. Armstrong resigned March 16, 2014.

Judicial Nominating Process
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected. Attorneys may recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of the Chief Justice. Chief Justice Minton then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. A letter naming the three nominees is sent to Gov. Steve Beshear for review. The governor has 60 days to appoint a replacement, and his office makes the announcement.

Makeup of the Judicial Nominating Commission
The Judicial Nominating Commission is established in the Kentucky Constitution. Ky. Const. § 118; SCR 6.000, et seq. The commission has seven members. The membership is comprised of the chief justice of Kentucky (who also serves as chair), two lawyers elected by all the lawyers in their circuit/district and four Kentucky citizens who are appointed by the governor. The four citizens appointed by the governor must equally represent the two major political parties, so two must be Democrats and two must be Republicans. It is the responsibility of the commission to submit a list of three names to the governor and the governor must appoint a judge from this list of three.

District Court
District Court judges handle juvenile matters, city and county ordinances, misdemeanors, violations, traffic offenses, probate of wills, arraignments, felony probable cause hearings, small claims involving $2,500 or less, civil cases involving $5,000 or less, voluntary and involuntary mental commitments and cases relating to domestic violence and abuse.

Administrative Office of the Courts
The Administrative Office of the Courts in Frankfort is the operations arm for the state court system. The AOC supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks. As the fiscal agent for the state court system, the AOC executes the Judicial Branch budget.

SCOTUS rules warrants needed for cellphone search

Wednesday, June 25th, 2014

Major ruling on cellphone privacy by the court June 25, 2014. |

All justices but one joined in the majority opinion. |

By JOSH GERSTEIN and TAL KOPAN | 6/25/14 10:33 AM EDT Updated: 6/25/14 12:30 PM EDT
The Supreme Court struck a major blow in favor of digital privacy Wednesday by ruling unanimously that police generally need a warrant before searching the cellphone or personal electronic device of a person arrested.

In a sweeping opinion, Chief Justice John Roberts resoundingly rejected arguments that searches of digital devices for information are comparable to searches law enforcement officers often conduct for contraband after making an arrest.

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“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Roberts wrote.

(Also on POLITICO: Aereo loses copyright fight at Supreme Court)

The chief justice went even further, arguing that the privacy concerns at stake in the search of a phone are even more acute than those involved in the search of a home — the place traditionally considered most sacrosanct under American law.

“A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form — unless the phone is,” Roberts wrote.

The court’s ruling was surprisingly broad in both its protection of privacy and in its savvy about the evolution of modern technology.

At oral arguments in the case, Roberts seemed surprised that an individual might have a legitimate reason to carry two cellphones. And Justice Antonin Scalia seemed to favor a result that would have allowed police to conduct a warrantless phone search for evidence of the crime a person was arrested for, but not other crimes. That distinction is considered and rejected in the majority opinion Scalia joined Wednesday.

(PHOTOS: 21 landmark SCOTUS rulings)

Roberts acknowledged that the court’s decision would make it harder for police to fight crime but said that fact did not justify excusing them from getting a warrant before conducting searches of cellphones and smartphones.

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Roberts wrote for the court. “Cell phones have become important tools … among members of criminal enterprises and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”

All the justices except for Justice Samuel Alito joined Roberts’ majority opinion. Alito agreed with the court’s basic holding on warrants but said he’d give legislatures more leeway to set rules limiting the warrant requirement in certain circumstances.

The ruling in a pair of related cases is the latest effort of the highest court to grapple with the way advancing technology has outgrown the legal framework developed decades ago about what law enforcement is allowed to look at when arresting an individual.

The ruling gives guidance to law enforcement across the country, where federal and state courts have split on the question of whether a warrant is needed to look through a suspect’s cellphone at arrest, and how far they can go.

Privacy advocates have argued that with the vast amount of data stored on a device and in the cloud, the old court precedent built around searching an arrested man’s cigarette case shouldn’t apply. On the other hand, law enforcement has said that officers need to be able to search suspects both for safety and for the ability to preserve evidence, and cellphones or mobile devices are no different.

Roberts said the fact that data moves between the cloud and a smartphone without any action by the user and often without the user’s knowledge is all the more reason to insist on a warrant before allowing police to start rummaging through a device.

“Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference,” he wrote. “Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another. … Officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud.”

The court’s opinion explicitly leaves open the opportunity for police to search a cellphone without a warrant in “exigent circumstances,” such as a ticking-bomb scenario or when there’s reason to believe evidence is about to be destroyed.

In the first case, Riley v. California, a man was pulled over for expired tags and a search of his car revealed weapons. Police went through his phone at the scene and again later at the police station, finding media and messages that tied him to another crime and gang activity. Convicted, David Riley appealed to the California Court of Appeal, which upheld his conviction based on the evidence, which the judges said was constitutionally gathered. The Supreme Court took the case after the California Supreme Court rejected his appeal.

In the second case, United States v. Wurie, out of Massachusetts, Brima Wurie was arrested after an apparent drug deal. While he was in custody, police used a phone log entry for “my house” to go to Wurie’s residence and collect evidence that led to his conviction. Unlike in the Riley case, the 1st Circuit Court of Appeals overturned the verdict, ruling that the evidence collection was a violation of Fourth Amendment search and seizure protections and that a warrant is necessary to view any data on a suspect’s cellphone.

The lively oral arguments in the case in April exposed the court’s struggles in recent years to grapple with technology, as the distinguished justices discussed everything from Facebook to Fitbit and the implications of the integration of mobile devices into the average American’s life.

The court’s ruling was a defeat for the Obama administration, which supported law enforcement’s stance in the cases. Administration officials advanced the position that there was no fundamental difference between smartphones and other items a person could carry, such as a briefcase with personal documents or a billfold containing photos — a view the justices dismissed Wednesday as naively simplistic.

Jennifer Haberkorn contributed to this report.

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KRE) 614(c) provides that a trial court may permit a juror to ask a question of a trial witness by submitting the question to the judge.

Tuesday, June 24th, 2014

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Kentucky Rule of Evidence (KRE) 614(c) provides that a trial court may permit a juror to ask a question of a trial witness by submitting the question to the judge. The judge will then decide in his or her discretion whether to submit the question to the witness. Under KRE 614(d), any objections to a juror question “may” (and obviously should) be made outside the hearing of the jury. Professor Lawson’s Kentucky evidence treatise refers to the practice of permitting juror questions as being “deeply rooted” in Kentucky common law. See Lawson, Kentucky Evidence Law Handbook § 3.25[2] at p. 269 (5th ed. 2013) (citing Slaughter v. Com., 744 S.W.2d 407 (Ky. 1987) (providing that jurors should be permitted to pose questions that are “pertinent and competent”)).
Other than KRE 614, Lawson’s observation of the practice, and the Slaughter case, there was not much in the way of modern case law or authority in Kentucky to instruct trial judges and litigators on any particular procedural or substantive considerations for allowing juror questions, until the Kentucky Supreme Court issued its opinion in Fraser v. Miller, 427 S.W.3d 182 (Ky. 2014). In that medical malpractice case, a juror sought to ask a question during the plaintiff’s case-in-chief relating to a causation issue. The problem was that the question was presented the day after the plaintiff’s expert witness testified, when the witness had already returned to another state. The plaintiff sought to depose the departed witness by telephone and then offer his testimony on rebuttal. The trial court ruled that the plaintiff could not present the additional testimony to address the juror’s question on rebuttal, primarily because it did not constitute proper rebuttal testimony.
The Supreme Court, in an opinion by Justice Cunningham, discussed CR 43.02 relating to the order of proof at trial, and noted that a trial court has discretion to regulate the order of presentation of proof at trial. The Court held that the trial court properly denied the plaintiff’s request to have the expert address the juror’s question on rebuttal since the issue arose on plaintiff’s case-in-chief and was not true rebuttal. The Court also stated that the causation issue raised by the juror’s question was “not a critical issue” that was pertinent to the expert’s testimony. Finally, the holding offered this guideline for juror questions to be asked at trial: the trial judge should advise the jury at the beginning of the trial that any juror questions for a witness must be posed while the witness is still on the stand.
Thus, the opinion suggests that trial judges and lawyers should carefully scrutinize a juror’s question, not just to see it is ” pertinent and competent” (to borrow the phrase from Slaughter), but also to make sure it is timely.
David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.

Supreme Court on Evaluation of Claims to Computer-Implemented Inventions under 35 U.S.C. § 10

Tuesday, June 24th, 2014

McDermott Will & Emery
Article By:
Margaret M. Duncan
McDermott Will & Emery
posted on: Tuesday, June 24, 2014

On June 19, 2014, the Supreme Court of the United States issued its much anticipated decision in Alice Corporation Pty. Ltd. v. CLS Bank International et al., confirming that computer-implemented inventions, such as computer software, remain eligible subject matter for patent protection in the United States. The unanimous decision of the court, written by Justice Thomas, also confirmed the court’s prior precedent that abstract ideas (such as the “concept of [the] intermediated settlement” at issue in this case) are not patent eligible. The Supreme Court confirmed that in accordance with its prior precedent, the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. There must be something more, such as additional features or steps that are more than “well-understood, routine, conventional activities” to provide practical assurance that a claim to a computer-implemented invention is more than a drafting effort designed to monopolize the abstract idea itself.

Case Background

Petitioner Alice Corporation Party, Ltd. is the assignee of patents that disclose a method for mitigating settlement risk. CLS Bank International filed a declaratory judgment action that it did not infringe the Alice patents and that the patents were invalid, inter alia, under 35 U.S.C. § 101. Alice filed counterclaims alleging patent infringement.

The patents at issue include method, computer-readable media and system claims. The claims require a computer to be used as part of the steps or elements of the claims (the parties stipulated that the method claims include the use of a computer).

Procedural History

Following the Supreme Court’s 2010 decision in Bilski v. Kappos, the district court agreed with CLS that all claims (method, computer-readable media and system claims) were patent ineligible under § 101, because they claimed the abstract idea of “employing a neutral intermediary to facilitate simultaneous exchange of obligations in order to minimize risk.” On appeal, the U.S. Court of Appeals for the Federal Circuit in a divided panel decision (Linn, J.), reversed the district court and found all claims to be patent eligible because it was not “manifestly evident” that the claims covered an abstract idea.

Shortly thereafter, the Federal Circuit, sitting en banc, issued a per curiam decision reversing the three-judge panel majority decision and affirming the district court’s decision, finding all claims to be patent ineligible. A five-member plurality (Lourie, J., joined by Judges Dyk, Prost, Reyna and Wallach) found all claims patent ineligible as abstract ideas. Judge Lourie stated that Alice’s claims “draw on the abstract idea of reducing settlement risk by effecting trades through a third-party intermediary,” and the use of a computer to maintain, adjust and reconcile shadow accounts added nothing of substance to the abstract idea.

In a portion of Chief Judge Rader’s opinion joined by Judge Moore, Judge Rader agreed with the conclusion of Judge Lourie’s plurality opinion that the method and computer-readable media claims were patent ineligible as abstract ideas. In another portion of Chief Judge Rader’s opinion, joined by Judges Linn, Moore and O’Malley, unlike Judge Lourie’s plurality opinion, Chief Judge Rader would have found that the computer system claims were patent eligible, with Judge Moore reaching the same conclusion in her separate opinion.

Judge Newman argued that all of Alice’s patent claims (method, computer-readable media and system claims) are patent eligible. Judges Linn and O’Malley reached the same conclusion in a separate opinion.


The Supreme Court granted certiorari to consider the question of “[w]hether claims to computer implemented inventions—including claims to systems and machines, processes, and items of manufacturer—are directed to patent eligible subject matter within the meaning of 35 U.S. C. § 101 as interpreted by this Court?”

Supreme Court Decision

In its unanimous decision, the Supreme Court affirmed the Federal Circuit’s per curiam decision, finding all claims patent ineligible. In reaching this decision, the Supreme Court first cited “the “important implicit exception” to § 101 that laws of nature, natural phenomena and abstract ideas are not patent eligible, citing the 2012 Supreme Court decision in Association for Molecular Pathology v. Myriad Genetics (Mayo). Justice Thomas reminded us that the Supreme Court has “interpreted § 101 and its predecessors in light of this exception for more than 150 years” and pointed out that “the concern that drives this exclusionary principle is one of pre-emption,” citing Bilski “upholding the patent ‘would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.’”

Citing Mayo, Justice Thomas emphasized that patent law should not “inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” However, he cautioned that “[a]t the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law” because “[a]t some level, ‘all inventions … embody, use, reflect upon, or apply laws of nature, natural phenomena, or abstract ideas.’”

Justice Thomas next discussed the “framework” set forth in Mayo for distinguishing patents that claim laws of nature, natural phenomena and abstract ideas from those that claim “patent-eligible applications of those concepts.” First, the Supreme Court must determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, the court next asks “[w]hat else is there in the claims before us?” To answer that question, Justice Thomas pointed out that the elements of each claim must be considered individually and as an ordered combination to determine whether the additional elements “transform the nature of the claim into a patent-eligible application.” He stated that “[w]e have described step two of the analysis as a search for an ‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself’”.

The Supreme Court then found that Alice’s claims at issue were drawn to an abstract idea:

It follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea. Petitioner’s claims involve a method of exchanging financial obligations between two parties using a third-party intermediary to mitigate settlement risk …

Like the risk hedging in Bilski, the concept of intermediated settlement is ‘a fundamental economic practice long prevalent in our system of commerce.’

The Supreme Court rejected Alice’s argument that abstract ideas should be limited to preexisting, fundamental truths that exist in principle apart from any human action, pointing out that Bilski belies this assertion because the risk hedging in that case was a “fundamental economic practice.”

Next, the court reviewed whether Alice’s claims contained something more than the abstract idea itself sufficient to render the claims patent eligible. The Court found they did not:

Because the claims at issue are directed to the abstract idea of intermediated settlement, we turn to the second step in Mayo’sframework. We conclude that the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention.

Justice Thomas next discussed the second step in the Mayo analysis: examining a patent claim to determine whether it contains an “inventive concept” sufficient to “transform” the claimed abstract idea into a patent-eligible application. The Supreme Court indicated that a claim that recites an abstract idea must include “additional features” to ensure the claim is more than a drafting effort designed to monopolize the abstract idea, and transformation into a patent-eligible application requires more than simply stating the abstract idea while adding the words “apply it.” The court also found that introduction of a generic computer into the claims does not alter the analysis in the second step of the Mayo analysis and is not enough to convert a patent ineligible abstract idea into a patent eligible invention. “The relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer. They do not.”

Concurring Opinion

Justice Sotomayor, in her concurring opinion joined by Justices Ginsburg and Breyer, would have found that all claims to business methods are patent ineligible. “I adhere to the view that any ‘claim that merely describes a method of doing business does not qualify as a ‘process’ under § 101.’” However, she concurred with the majority opinion by Justice Thomas that the claims at issue are drawn to an abstract idea and therefore joined the opinion of the court.

Practice Note

The Mayo two-step test, although unsatisfying to many commentators, is the test that the U.S. Patent and Trademark Office and the courts will be tasked with applying in determining whether a computer-implemented invention is patent eligible under § 101. Under the two-step analysis, a patent examiner or judge will first determine whether the claim is drawn to a patent-ineligible abstract idea. If the answer is “yes,” then the second step will be to review the claim to determine whether it contains an “inventive concept” sufficient to “transform” the claimed abstract idea into a patent-eligible application. In step two, the reviewer will need to determine if a claim includes “additional features” to ensure the claim is more than a drafting effort designed to monopolize the abstract idea. The transformation into a patent-eligible application will require more than simply stating the abstract idea while adding the words “apply it” to a particularly technological environment. Also, introduction of a generic computer to apply the steps of the claim will not be enough to convert a patent ineligible abstract idea into a patent eligible invention.

Montana Law Banning Undocumented Immigrants From Accessing State Services Is Held to Be Unenforceable

Tuesday, June 24th, 2014

HELENA – A district court judge has ruled that enactment of the 2012 voter-approved law banning undocumented immigrants from accessing state services is pre-empted by federal law and is unenforceable.

Legislative Referendum 121, which would have required certain state agencies to certify through a federal database that people requesting services are United States citizens, was set to take effect Jan. 1, 2013.

More than 80 percent of Montana voters supported the law in the November 2012 general election.

The immigrants’ rights group Montana Immigrant Justice Alliance sued in December 2012 to block the law, arguing the measure violated U.S. citizens’ rights to privacy, due process and equal protection under the Montana and U.S. constitutions and was pre-empted by federal law.

On Friday, District Judge Jeffrey Sherlock of Helena, agreed with the plaintiffs and struck down significant portions of the law.

In an 18-page order for summary judgment, Sherlock ruled the mandates upon state agencies to determine immigration status and deny a wide variety of state services to “illegal aliens,” is pre-empted by federal law as an impermissible regulation of immigration.

“The Immigration and Nationality Act … provides no definition for the term ‘illegal alien’ or the term ‘lawfully present,’” Sherlock wrote.

Sherlock wrote that by making up its own definition of “illegal alien,” the state is not only in a pre-emption conflict with federal law, but it also attempts to regulate immigration, which is prohibited by the Constitution.

“As noted by one court, state agents are unqualified and unauthorized to make independent determinations of immigration status,” Sherlock wrote. “Such determinations amount to immigration regulation that is pre-empted by the United States Constitution.”

Shahid Haque-Hausrath, a Helena immigration attorney and president of the Montana Immigrant Justice Alliance, was the lead attorney for the plaintiffs in the case.

“In this ruling, the court has prevented the state from engaging in misguided efforts to enforce federal immigration laws, which the state is not qualified nor authorized to do,” Haque-Hausrath said.

John Barnes, spokesman for Attorney General Tim Fox, said his office received a copy of Sherlock’s ruling Monday morning and was reviewing it.

“We have a period of time in which to make a decision on appealing,” Barnes said. “It is premature at this point as to whether or not we’re going to appeal.”

A spokesman for Gov. Steve Bullock, who is also named as a defendant in the case, said Bullock opposed the law.

“As attorney general, Bullock’s office opposed the measure,” Bullock spokesman David Parker said. “Attorney General Fox is the chief legal officer for the state and the ball is in his court on next steps.”

Sherlock upheld a provision of the law that permits communication between state agencies and the federal government regarding an individual’s immigration status. However, the ruling does not allow the state to make a legal determination of a person’s citizenship status.

“It is unconstitutional for the state to be engaging in its own determination of somebody’s immigration status and then denying services based on that determination,” Haque-Hausrath said. “This returns the state to the framework that has always existed, in which there are some services the federal government allows the state to screen, and there are others that it doesn’t.”

The measure was conceived by Republican state lawmaker Rep. David Howard of Park City.

Howard introduced a nearly identical measure in the 2011 Legislature but that bill died in committee. Howard then pushed forward with a proposal to put a the measure to the voters. The Republican-controlled Legislature passed the bill along party lines, sending the issue to voters on the 2012 ballot.

Howard said at the time the law was necessary because state taxpayers could be spending an untold number of of taxpayer dollars providing services to undocumented aliens.

Howard, who is now running for a seat in the Montana Senate, did not return a call seeking comment on Sherlock’s ruling.

In the argument for LR 121 provided to voters in the 2012 Voter Information Pamphlet published by the Montana Secretary of State’s office, Howard and former state Sen. Jim Shockley, R-Victor, wrote that the measure “requires the federal government to be notified and to enforce immigration control of illegal aliens who apply for state services, thus forcing them to leave Montana rather than use our services and take our jobs.”

Haque-Hausrath said lawmakers who backed the law ignored repeated warnings that it was unconstitutional.

“As the proponents pointed out in their argument for LR 121, this law was intended to make the state of Montana an unwelcoming place for immigrants,” Haque-Hausrath said.

Haque-Hausrath said over the past three legislative sessions lawmakers have considered at least 17 Republican-backed bills dealing with immigration, an issue he says is strictly covered by federal law.

“Since 2009 there have been a number of bills that would bring the state into the business of enforcing federal immigration laws,” Haque-Hausrath said.

Haque-Hausrath said while most of the immigration bills presented at the Legislature failed to pass, the state expended a significant amount of taxpayer dollars presenting LR 121 to Montana voters and in defending the lawsuit.

“I hope going into the next legislative session that the Legislature gets the message from this ruling that the state has no business enforcing federal immigration policy and needs to leave these issues to the federal government,” Haque-Hausrath said.

What the U.S. Supreme Court Said About Tax Credit Regulation in Health Insurance Exchanges

Tuesday, June 24th, 2014

BY JONATHAN H. ADLER June 23 at 7:47 PM
The Supreme Court has not ruled on the Internal Revenue Service’s regulation purporting to authorize tax credits and cost sharing subsidies in federally run health insurance exchanges, but two recent decisions – Michigan v. Bay Mills Indian Community and UARG v. EPA — address related questions of statutory interpretation. Both decisions take a dim view of arguments that relevant statutory language does not mean what it says.

Over at Darwin’s Fool, my sometime-co-author Michael Cannon shows how the rationales could apply in Halbig and the other cases challenging the legality of the IRS rule. Here’s a brief portion of Justice Kagan’s opinion for the Court in Bay Mills, as applied to Halbig by Cannon:

this Court does not revise legislation, as [the IRS] proposes, just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts-addressing one thing without examining all others that might merit comparable treatment. Rejecting a similar argument that a statutory anomaly (between property and non-property taxes) made “not a whit of sense,” we explained in one recent case that “Congress wrote the statute it wrote” — meaning, a statute going so far and no further…The same could be said of [the PPACA conditioning tax credits on states establishing Exchanges]. This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS's] words) Congress “must have intended” something broader…And still less do we have that warrant when the consequence would be to expand [benefits and penalties beyond the lines drawn by Congress]…

And here’s a similarly edited snippet from Justice Scalia’s opinion in UARG

An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “‘give effect to the unambiguously expressed intent of Congress.’” . . .

The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice. . . .

Cannon has more from the decisions here. Of course both cases present different legal issues and can be distinguished from Halbig, but it’s nonetheless interesting how relevant portions of each decision are.

Some quick background: The text of the PPACA provides tax credits and cost-sharing subsidies for the purchase of qualifying health insurance plans by qualified individuals on health insurance exchanges “established by the State under Section 1311″ of the law. After some states announced their intention not to create such exchanges, the IRS promulgated a regulation authorizing tax credits and subsidies in exchanges established by the federal government under Section 1321 of the PPACA, in addition to state exchanges established under Section 1311. Four lawsuits have been filed challenging the IRS rule. Two are pending in district courts in Oklahoma and Indiana and two others (Halbig v. Sebelius and King v. Sebelius) are on appeal in the U.S. Courts of Appeals for the D.C. Circuit and Fourth Circuit, respectively.

U.S. Supreme Court rejects Wisconsin appeal over abortion law

Tuesday, June 24th, 2014

By Jason Stein and Dana Ferguson of the Journal Sentinel June 23, 2014
The nation’s highest court on Monday turned down Wisconsin’s bid to reinstate a state law requiring abortion doctors to have admitting privileges at nearby hospitals, leaving the rule blocked for now amid an ongoing legal challenge.

The U.S. Supreme Court declined to hear the appeal by state Attorney General J.B. Van Hollen, who wanted the justices to put the state law back into effect while lower courts consider the law’s ultimate fate.

A federal judge in Madison is poised to issue a final ruling on the lawsuit by Planned Parenthood of Wisconsin and another clinic challenging the law. The abortion groups in the case argue the law amounts to an unconstitutional restriction on women’s access to abortion in Wisconsin because of the challenges that doctors are finding in obtaining admitting privileges.

U.S. District Judge William Conley put the law on ice last summer while he considers a final ruling and a federal appeals court in Chicago upheld Conley’s initial injunction of the law. In refusing without comment to hear Van Hollen’s appeal Monday, the U.S. Supreme Court left in place the initial rulings by Conley and the 7th Circuit Court of Appeals.

The courts could still issue final rulings in favor of the state in the case, but so far Conley’s decisions have favored critics of the law.

Last week, two doctors with an abortion provider in Milwaukee said they had attempted to obtain admitting privileges and been denied.

Larry Dupuis and Renée Paradis, attorneys for Affiliated Medical Services, on Friday submitted to the court letters from hospitals within a 30-mile radius of the Milwaukee clinic denying doctors Dennis Christensen and Bernard Smith admitting privileges.

The trial concerning the 2013 Wisconsin law requiring those credentials wrapped up on May 30. If reinstated, the admitting privileges law could result in the closing of the Affiliated clinic, one of four in the state and the only one that provides abortions for pregnancies longer than 18 weeks.

Conley requested on the trial’s final day that Dupuis and Paradis provide correspondence verifying that Christensen and Smith had been denied admitting privileges.

State Department of Justice spokeswoman Dana Brueck said the Supreme Court’s decision not to hear the appeal had more to do with the justices’ limited capacity than disinterest in the case.

“The Supreme Court’s action, although disappointing, is not surprising considering the very small number of cases the Supreme Court grants for review,” Brueck said. “The attorney general had hoped that the Supreme Court would address some of the preliminary issues presented by this case.”

Brueck said Van Hollen will continue to defend the law. Many states have passed laws like it, she said.

Dupuis said he wasn’t sure why the state filed an appeal with the Supreme Court when Conley is due to decide very soon, but said he felt relieved the Supreme Court did not take the case.

“We’re glad we’re not fighting on two fronts at the same time,” the attorney for Affiliated Medical Services said.

Decision sheds little light

Carl Tobias, a professor at the University of Richmond School of Law, said the Supreme Court’s decision not to hear the appeal provides little information. Tobias said the court may have found the requirements for imposing a stay on the law put forth by Conley and the 7th Circuit sufficient, but the decision itself does not reveal that theory. Tobias said he believes the admitting privileges requirement is unconstitutional.

“I don’t think you can tell much from what happened today about what the justices were thinking,” Tobias said. “All it is is a list of the order and it says ‘denied.’”

The lawsuit was brought by Affiliated and Planned Parenthood, which runs the state’s other three abortion clinics.

Letters from Wheaton Franciscan Healthcare, Aurora Health Care and Froedtert Health Inc. say Christensen and Smith do not qualify for admitting privileges because in their clinic the two are not subject to review by a professional board to make sure their practices meet hospital standards.

Additionally, a letter written by Aurora Health Care’s legal representative, Jane Appleby, says the doctors said they intend to treat only a few patients in the hospital setting and would not meet the hospital’s annual quota of at least 20 patients.

Paradis said the doctors applied for privileges with Aurora and Froedtert although they knew they failed to meet certain requirements. The doctors did not formally apply with Wheaton Franciscan because they knew the hospital required physicians to sign pledges saying they would not advertise abortion services. Wheaton Franciscan sent a letter saying the two would be denied privileges for other reasons as well.

“Each doctor is categorically ineligible due to lack of inpatient care and peer review,” Paradis said. “They still made the effort where they felt they had previous relationships or other factors that they thought could grant them an exception.”

Christensen and Smith did not apply to Waukesha Memorial Hospital and Columbia St. Mary’s Hospital because they knew they had similar bylaws requiring inpatient clinical activity that neither doctor had due to the outpatient setting of their clinic.

“They didn’t go through the empty gesture of filling out applications at hospitals where they knew they would be rejected,” Paradis said.

Linda S. McPike, a legal representative of Froedtert, wrote in a letter that the hospitals “do not deny admitting privileges based on a physician’s provision of outpatient abortion services.”

McPike also said in her letter that the hospitals do not have a category of physician that would solely allow the doctors to admit patients that require care in addition to that which they receive in another setting. She said Christensen has “refer and follow staff membership rights,” which allow access to inpatient care for patients. McPike said Smith also could apply for those membership rights.

Conley is expected to rule this summer. His decision will almost certainly be appealed.

Supreme Court: EPA can regulate greenhouse gas emissions, with some limits

Monday, June 23rd, 2014

BY ROBERT BARNES June 23 at 12:41 PM
The Supreme Court on Monday mostly validated the Environmental Protection Agency’s plans to regulate power plant and factory emissions of greenhouse gases blamed for global warming, while imposing some limits on the agency’s reach.
The justices said the EPA could not rewrite specific standards written into the law, but they still handed the Obama administration and environmentalists a big victory by agreeing there was another way for the EPA to carry out its program.
“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said from the bench, in announcing the decision. “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”
The decision concerns rules separate from the EPA’s proposed more comprehensive plans released earlier this month to cut carbon emissions from existing plants by as much as 25 percent over 15 years.
“Today is a good day for all supporters of clean air and public health and those concerned with creating a better environment for future generations,” the EPA said in a statement.
Perhaps of more value than the specific case, the court reinforced its view that the Clean Air Act gives the agency the ability to regulate greenhouse gases. Sean H. Donahue, who represented environmental agencies in the case, said the decision makes clear that seven of the nine justices hold that view.
“It’s settled law,” he said.
The bottom line that EPA got much of what it wanted contrasted with rhetoric in Scalia’s opinion that suggested a power grab.
He said that emissions of greenhouse gases alone are not enough to trigger EPA enforcement — that would sweep in too many small sources, such as schools, churches and shopping centers, Scalia said.
The EPA agreed with that.
But Scalia said the EPA cannot resolve the problem by simply rewriting the specific standards written into the law. An agency does not have power to “revise clear statutory terms that turn out not to work in practice,” he wrote.
But the majority of the court still found a way for the EPA program to work.
Scalia said the agency can impose the greenhouse gas regulations on facilities that are already regulated under the EPA’s Prevention of Significant Deterioration program. That program requires the facilities to install the best available technology to control emissions from all regulated pollutants.
The court’s liberal justices agreed with that part of the decision, but they would have deferred to EPA’s ability to make the statute work.
Justices Clarence Thomas and Samuel A. Alito Jr. said they disagreed that the agency had clear power to address greenhouse gases.
The EPA was challenged by a number of states, led by Texas, and industry groups and the Chamber of Commerce.
“Today, the Supreme Court largely upheld EPA’s approach to focusing Clean Air Act permits on only the largest stationary sources of greenhouse gases such as power plants, refineries, and other types of industrial facilities,” the EPA said in its statement. “The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources.”
The legal battle in part results from the failure of the administration and Congress to find common ground on the issue of global warming.
The court ruled in the 2007 case, Massachusetts v. EPA , that carbon dioxide and other greenhouse gases are pollutants that can be regulated under the Clean Air Act. That case, which was brought by states that said the EPA under President George W. Bush was not doing enough to fight global warming, concerned regulating motor vehicles.
The Obama administration later reasoned that “stationary sources” — factories, power plants and other structures — were also subject to the permitting requirements in certain parts of the act.
A unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with that view. It said that court precedents made the agency’s readings of its powers “unambiguously correct.”
But the EPA has acknowledged that the permitting thresholds set by the Clean Air Act do not fit well with something like carbon dioxide, which is ubiquitous in the environment. While the law said pollution limits of 100 to 250 tons per year triggered permitting requirements, the EPA had to raise those to 75,000 to 100,000 tons per year for greenhouse gases to identify the facilities most in need of regulation.
The justices in April ruled in EPA’s favor in another challenge, resurrecting a rule targeting air pollution that drifts across state borders, handing the Obama administration a victory on one of its major environmental efforts.
The agency for years, under two administrations, has struggled to carry out a directive under the federal Clean Air Act to protect downwind states from pollution generated in other states, mostly from coal-fired power plants. The EPA’s rules from 2011 were challenged by a coalition of upwind states and industry, which prevailed in lower courts.
But the Supreme Court ruled 6 to 2 that the latest effort could be implemented, with Justice Ruth Bader Ginsburg writing for the majority that the agency must have leeway to confront the “complex challenge” of interstate pollution.


Sunday, June 22nd, 2014

The Supreme Court largely chose to uphold the status quo in the world of software patents today with a unanimous ruling in the case of Alice Corp. v. CLS Bank.
The court upheld the most recent ruling on the case from the U.S Court of Appeals for the Federal Circuit, invalidating patents held by Alice relating to using a computer to manage an intermediated settlement.
“We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention,” Justice Clarence Thomas wrote.
The decision is based on precedent set in previous patent cases, including Bilski v. Kappos and Mayo v. Prometheus, which provide a framework for figuring out whether an idea is patentable. In each case, the court ruled that companies can’t patent abstract ideas, and it held to that conviction with this ruling.
“Stating an abstract idea while adding the words ‘apply it with a computer’ simply combines those two steps, with the same deficient result,” Thomas wrote.
That’s good news for a lot of tech companies, and bad news for patent trolls and other companies that are using similar patents to extract licensing fees from firms that create software applications touching on similarly abstract ideas.
Aside from that, today’s ruling hasn’t changed much for companies that hold software patents. The court didn’t choose to invalidate all software patents, and declined to put in place new procedural rules that would make it easier for companies to defend against patent infringement allegations, something that some tech companies advocated for in briefs submitted to the court.
If there’s one thing that’s clear from today’s ruling, the question of software patent legality won’t be resolved quickly or easily. Justice Sonia Sotomayor was joined by Stephen Breyer and Ruth Bader Ginsburg in a concurring opinion that agreed with much of Thomas’s argument, but argued that business method patents, including software patents, were invalid.
What’s more, the ruling leaves open the possibility for future litigation based on the Supreme Court’s wording. All software is based on taking an abstract idea and applying it with a computer. Microsoft won a judgment against Motorola Mobility last year based on a patent it holds for synchronizing a calendar.
It’s unclear yet if keeping a calendar synchronized in multiple places will fall under the Supreme Court’s definition of an abstract idea, but that certainly seems like a possibility.
Update: Microsoft welcomed the decision today, saying the following in a statement emailed to GeekWire.
“Microsoft is pleased that the Court has confirmed existing law that abstract ideas are not eligible for patent protection, and distinguished the Alice patent from software inventions. Software powers nearly every inventive device, service and product in our world today, and providing patent protection for software-enabled technologies is critical to incentivizing innovation in every industry and sector of the economy.­”
David Kappos, the former U.S. Under Secretary of Commerce for Intellectual Property, similarly commended the court for the pat it took in its ruling today.
“Today’s decision affirms software’s critical role in modern innovation and the need for patent protection,” he said in a statement emailed to GeekWire. “Software innovations are powering the latest technologies in every industry, including IBM, Ford, GE, DuPont and others, creating American jobs and driving our economy. This decision helps maintain a positive climate for technology innovation in the United States.”
The full text of the opinion is embedded below.


Sunday, June 22nd, 2014

Plausible as this reasoning sounds as a matter of law, it doesn’t precisely match the real world experience of a person who receives an IRS summons.

WHAT DO you dread more than a summons from the IRS? The tax authority is the closest thing to Dostoevsky’s Grand Inquisitor that our democracy allows. And recently the U.S. Supreme Court made the Internal Revenue Service just a little bit stronger, overturning an appeals court opinion that would have allowed you to examine the IRS agents who summon you to find out if they have improper motives. The court established a reasonable-sounding rule: You can question the agents only if you can point to specific circumstances plausibly raising the inference of bad faith. In reality, however, it’ll be hard to pass this bar unless the courts share the skepticism of the IRS that is natural to most taxpayers.

The case, United States v. Clarke, grew out of an investigation of a partnership called Dynamo Holdings that had unusually high interest deduction claims. The investigation dragged on for several years. The IRS repeatedly asked the target to extend the three-year statute of limitations for assessing tax liability, which it agreed to do three times, presumably in the hopes of resolving the case in its favor. When the fourth request came around, Dynamo Holdings said no. The IRS then issued summonses to four people associated with the partnership. When they didn’t comply, the IRS enforced the summonses through court orders.

Instead of quaking in their boots and complying, the four who were summoned fought back. They argued that the timing of the summonses, immediately after Dynamo Holdings refused to grant the extension, was evidence of impropriety. They further claimed that the IRS’s decision to enforce the summonses was to gain an advantage in a lawsuit that Dynamo Holdings had by then filed against the IRS.

The U.S. Court of Appeals for the 11th Circuit bought the arguments offered by those summoned. It held that an allegation of improper purpose was enough to get the IRS agents examined. This holding was either remarkably brave or remarkably foolish, depending on your angle. No other court of appeals had gone as far. The stage was set for the 11th Circuit to be smacked down.

The Supreme Court duly reversed. It noted that, when you get a summons, you are entitled by law to a day in court. But in a unanimous opinion written by Justice Elena Kagan, the court emphasized that the hearing you get is “summary in nature.” Kagan’s opinion justified the limited nature of the hearing by insisting that the underlying purpose of an IRS summons is simply “to inquire,” not to accuse. It followed, she wrote, that the hearing should only ascertain that the summons was issued in good faith. No examination of the agents would be authorized unless the person summoned could provide specific evidence plausibly leading to an inference of bad faith.

Plausible as this reasoning sounds as a matter of law, it doesn’t precisely match the real world experience of a person who receives an IRS summons. It may be technically true that the summons formally signals an inquiry rather than an accusation, but the person on the wrong side of the summons will have to act as though an accusation is impending. At the very least, he will have to hire lawyers alongside his accountants, or more realistically pay more money to the lawyers he already has hired for just such a contingency.

What’s more, it will probably be extremely difficult for those who receive a summons to sufficiently satisfy the court’s requirement of specific evidence plausibly leading to an inference about faith. The Supreme Court did not say that the timing evidence provided by those summoned in connection with Dynamo Holdings was insufficient to meet that standard. It sent the issue back to the court below to apply what it called the correct legal standard to the facts. But again, in the real world, lower courts tend to take being reversed on the law as a reason to reach a different conclusion on the facts. If I were Dynamo Holdings, I’d be preparing for the summonses to be enforced by the courts in short order.

Was the decision right? It’s easy to see the court’s institutional logic. If a bare allegation of impropriety triggers a full examination, that might lead everyone who receives a summons to make such an allegation. That would correspondingly make the job of the IRS more time-consuming and therefore more costly. In the end, the rest of the taxpayers would end up footing the bill.

Yet at the same time, it’s hard to escape the feeling that the 11th Circuit was onto something, at least symbolically. Interacting with the IRS fills every taxpayer, no matter how small, with feelings of horror — because the bureaucracy is so large, its powers are so enormous — and it has very little incentive to care if it wastes your time and money even if it ends up losing. Such powers need supervision by the courts to keep them honest, and to keep us free. The Supreme Court’s decision may well be right in the end. But somehow I feel a little less safe from the IRS as a result of it.

Noah Feldman writes for Bloomberg View.

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Supreme Court rules public employees are protected from retaliation for testimony

Sunday, June 22nd, 2014

By Robert Barnes
The Washington Post

WASHINGTON — The Supreme Court ruled unanimously Thursday that public employees are protected from retaliation when they testify in court about misconduct they observed on the job, a decision important to millions of government workers.

Public employees who are called to testify are protected by the First Amendment just as other citizens are and should not have to choose between “the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs,” wrote Justice Sonia Sotomayor.

The decision clarified previous rulings in which the court has said that public employees have free-speech rights when they are acting as citizens, not when they are testifying to what they learned in their jobs or are required to speak because of their specific duties.

The justices said lower courts had read those decisions too broadly.

“The mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee — rather than citizen — speech,” Sotomayor wrote.

Stephen Kohn, executive director of the National Whistleblower Center, said the ruling “will have a direct and major impact on the willingness of public employees to expose corruption in government.”

He added: “The right of every American citizen to truthfully testify about criminal activities, including fraud in government contracting, is a cornerstone to a democracy.”

The case concerns Edward Lane, who Alabama Attorney General Luther Strange said at oral argument was key to exposing “one of the most egregious public corruption situations in Alabama’s history.”

Lane, director of a youth training program at Central Alabama Community College, discovered in 2006 that a state legislator, Suzanne Schmitz, had arranged a no-show job for herself with the program.

Lane fired her for nonperformance.

After she was terminated, the FBI began investigating and Lane was subpoenaed to testify, first before a grand jury and subsequently at two criminal trials. The first ended in a mistrial, but Schmitz was convicted in the second.

In between the trials, the community college’s then-president, Steve Franks, said cuts in the program’s budget required layoffs, and he fired 29 probationary employees with less than three years of service. Franks said he then discovered many of the employees were not probationary and hired them back.

Lane was one of only two not rehired, and he filed suit, saying the action was retaliation for his testimony.

Lower courts did not rule on whether Lane was right. Instead, relying on the Supreme Court’s previous rulings, a district judge and then the U.S. Court of Appeals for the 11th Circuit said Lane’s First Amendment complaint could not go forward because he was not testifying in his role as “citizen.”

That was a mistake, Sotomayor said.

The court has always recognized the “special value” of speech by public employees precisely because they gain valuable knowledge through their employment, she wrote.

“It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials — speech by public employees regarding information learned through their employment — may never form the basis for a First Amendment retaliation claim,” she said.

The court’s decision did not address public employees whose job requirements include testifying in court, such as police officers and laboratory analysts, Justice Clarence Thomas noted in a concurring opinion joined by Justices Antonin Scalia and Samuel Alito.

The decision, while important going forward, may not help Lane much.

Sotomayor said the lower courts were right that Franks in his individual capacity could not be sued. Public employees are generally protected against suit unless they have violated the law or a clearly established constitutional right.

“But because the question was not beyond debate at the time Franks acted, Franks is entitled to qualified immunity,” the court held.

But the court sent the case back for consideration of whether Lane might be able to bring a suit against the college and its current president in her official capacity.

The case is Lane v. Franks.

Stress may be killing law students’ brain cells, law prof says

Sunday, June 22nd, 2014

Posted Jun 18, 2014 5:45 AM CDT
By Debra Cassens Weiss

Law students take note: Rats that spend time on a running wheel generate twice the new brain cells as those that are sedentary.

And that is one reason why exercise is so important, according to University of Denver law professor Debra Austin, who wrote about stress and the brain in the Loyola Law Review. Stress associated with law school and the practice of law is taking a tremendous toll on cognitive capacity, Austin says.

“Stress can weaken or kill brain cells needed for cognition,” she writes in the article (PDF).

Stress can lead to anxiety, panic attacks, depression, substance abuse and suicide, Austin says. What’s more, “Neuroscience now shows that this level of stress also diminishes cognitive capacity.”

Law schools should look to perks offered by innovative companies such as Google, Whole Foods Market and Cisco systems, Austin says. “Research shows that perks such as onsite gyms, work/life balance programs, stress management classes, mindfulness training, and nutrition coaching promote cognitive health and produce vibrant workplaces and thriving employees.”

Austin says law students can take matters into their own hands by exercising more, getting more sleep and engaging in contemplative practices such as a mindfulness and meditation. “Replacing less healthful activities such as cocktail hour, playing video games, or watching television could yield the time law students and lawyers require to optimize cognitive performance,” Austin says.

She also encourages law professors to do their part. “Professors who do not understand the neuroscience of cognitive wellness may unwittingly be causing their own disappointment in student performance by conducting classes under stressful conditions or supporting policies that engender stress-saturated law school cultures,” Austin says.