State Court Docket Watch
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Cooper v. Berger
Docket Watch 2018
By John E. Branch, H. Denton Worrell
In State ex rel. Cooper v. Berger, No. 52PA17-2 (N.C. Jan. 26, 2018), the Supreme Court of North Carolina determined that a statute combining the North Carolina Board of Elections with the North Carolina Ethics Commission under a bipartisan, eight-member board (the “Board”) was unconstitutional due to the Governor’s inability to appoint a majority of the Board from his own political party. Not only does this decision expand upon recent separation-of-powers opinions increasing the power of the executive branch to the detriment of the legislature, but the Court’s refusal to apply the political question doctrine calls into question its efficacy in North Carolina.
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League of Women Voters v. Commonwealth of Pennsylvania
Docket Watch 2018
In League of Women Voters v. Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania determined that Pennsylvania’s congressional districting plan, which had been in place since 2011, violates the Constitution of the Commonwealth of Pennsylvania. Based on this determination, a 5-2 partisan line vote (the majority comprising the Democrat members of the court), struck down the […]
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Coloradans for a Better Future v. Campaign Integrity Watchdog
Docket Watch 2018
By Paul Sherman
In 2012, Colorado’s Republican voters faced a choice in the campaign for Colorado University’s Board of Regents: Brian Davidson or Matthew Arnold? The campaign made headlines after Arnold admitted to lying about his educational credentials. And in the heat of this debate, Coloradans for a Better Future (CBF)—a 527 political organization—ran two radio ads, one promoting Davidson and one criticizing Arnold.
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Bormuth v. County of Jackson
Docket Watch 2017
If you’re looking for evidence that Establishment Clause jurisprudence is a mess, look no further than the Sixth Circuit’s decision in Bormuth v. County of Jackson (decided September 6, 2017) and the Fourth Circuit’s decision in Lund v. Rowan County (decided July 14, 2017). Both cases involve the constitutionality of governmental officials engaging in prayer before a public meeting. Both were decided by en banc circuit courts. And when all the votes in both cases are counted, there were 15 votes striking down legislative prayer, 14 votes upholding the same practice, and one neutral vote that would have remanded for further proceedings. This scenario begs for Supreme Court review. But if that happens, what next?
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Burgess v. FDIC, the Appointments Clause, and the Separation of Powers
Docket Watch 2017
Last week, the Fifth Circuit became the third circuit court to consider whether administrative law judges (ALJs) are “inferior Officers” subject to the Appointments Clause. In Burgess v. FDIC, the court stayed an FDIC order that assessed a civil penalty against Cornelius Burgess and required his withdrawal from the banking industry. Mr. Burgess is asking the Fifth Circuit to review the FDIC’s order, which he argues is invalid because the ALJ who issued the agency’s initial decision was not appointed under the Appointments Clause. The court held that Burgess established a likelihood of success on his Appointments Clause challenge.
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PA Supreme Court Reinvigorates State’s 1971 Environmental Rights Amendment
Docket Watch 2017
By Joel Burcat
In Pennsylvania Environmental Defense Foundation v. Commonwealth,[1] the Pennsylvania Supreme Court overturned the standard that had been applied by the courts since 1973 when they review governmental determinations under Pennsylvania’s Environmental Rights Amendment (“ERA”). In so doing, the Court effectively re-set and re-established the ERA which was ratified in 1971.
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Milewski v. Town of Dover
Docket Watch 2017
Government officials are prohibited from entering your home and searching it without your permission – that’s a bedrock principle of the Fourth Amendment. As a corollary, the government cannot punish people who choose to exercise that constitutional right. Yet that’s exactly what the Town of Dover, in Racine County, Wisconsin, did.
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Biggs v. Betlach: Protecting Taxpayer Rights
Docket Watch 2017
The Supreme Court’s 2012 decision National Federation of Independent Business v. Sebelius held that the federal government can’t force states to expand their Medicaid rolls by threatening to withhold funding. The Court ruled 7-2 that the ACA’s provisions forcing states to transform Medicaid from “a program for the neediest among us”— the disabled, blind, elderly, and needy families with dependent children—into “an element of a comprehensive national plan to provide universal health insurance coverage,” exceeded Congress’s Spending Clause powers. Instead, states must remain free to choose whether or not to adopt Medicaid expansion.
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Covenant v. State Farm
Docket Watch 2017
In 1972, the Michigan Legislature enacted the Michigan no-fault insurance act,[1] which became effective on October 1, 1973. One avowed purposes of the no-fault act was to reduce litigation related to automobile accidents. In 2016, the last year for which annual statistics are available, however, almost half of all civil cases pending in Michigan trial courts were related to automobile negligence claims. Therefore, it is not surprising that one of the most significant decisions by the Michigan Supreme Court in 2017 related to the interpretation of the Michigan no-fault insurance act: Covenant Medical Center, Inc. v. State Farm, 500 Mich. 191; 895 N.W.2d 490 (2017).
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Lynch et al., v. California Coastal Commission
Docket Watch 2017
In Lynch et al., v. California Coastal Commission, the California Supreme Court this month raised a procedural hurdle for property owners pursuing challenges to unlawful permit conditions. Property owners who wish to contest a permit condition imposed by a state agency must delay any work on their project until final adjudication of the challenge.