Signing off for the week.

Much reading to do about early modern law & drama.  Back next week, if the crick don't rise.  Decisions in the interval (including some from yesterday) are water under the dam.  This site is basically an odd mix of work-in-progress, proof-of-concept, and going concern.  In short, I post when I have the time.  Kind of a batting practice, really.  Cheers.

-CB

Fifth Circuit: Marc Veasey, et al v. Greg Abbott, et al

En Banc, Election Law

(Panel of 15)

  (7 + 2 partial* & in the judgment)

*A claim of discriminatory purpose in the passage of a law cannot be based on statements from legislators opposed to the passage of the bill.* (This part not joined by the 2)

In assessing discriminatory effect under the Voting Rights Act, a multi-factor test should be used, as opposed to a bright-line nexus requirement.

No ruling on violations of the 1st and 14th Amendment burden of right to vote, as a finding of statutory violation results in the same remedy.

 Voter ID requirement was not a poll tax before the law was changed to make the ID free, and is still not a poll tax.

Not an abuse of discretion for the District Court to fashion a remedy, as the legislature is out of session.

     Concurrence  (2, both joining plurality, one in part):

Multifactor test good, as 5th invented much of it.

Won't open the floodgates, as courts can closely weigh factors.

                                       Concurrence / Dissent (5)

Not a poll tax.  Opinion otherwise incorrect.  (68pp, mostly findings and merits)

                                       Dissent (3, all in c/d above)

ID requirement still in place, since those who now have the ID must show it.

Judge below made myriad errors.

           Concur/Dissent, Concur in J (1, joining plurality in part)

Discriminatory motive analysis of the plurality re-weighed merits inappropriately.

                                                                        Dissent (6, all non-plurality)

Record justifies reversal on discriminatory purpose.

                                                                        Dissent (2, both in prior dissent)

Record justifies reversal on discriminatory effect.

Dissent (1, Partially joined plurality)

Record justifies affirming on discriminatory intent.

Takeaway (remember, this is quick work) 9 for Remand for multifactor test on discriminatory effect; 8 for affirming on discriminatory purpose (7 for remand); 14 for the lack of Poll Tax violation; 3 for egg salad; 2 for pastrami.


Marc Veasey, et al v. Greg Abbott, et al

Third Circuit: USA v. Raymond Napolitan

Habeas, Federal Jurisdiction


A federal court does not abuse its discretion in ordering a custodial sentence to be served consecutively with a state sentence despite the possibility that the state sentence was rendered unconstitutionally. 

Procedurally, this means that a state custodial sentence cannot be challenged on constitutional grounds on federal direct appeal.

USA v. Raymond Napolitan

Second Circuit: United States v. Jones

Sentencing


Plain error to hold under categorical review that state statute is a valid predicate crime of violence for the purposes of the sentencing guidelines.

United States v. Jones

Second Circuit: Orchard Hill Master Fund v. SBAC Corp.

Contracts, Your guess is as good as mine


Where a contract for payment of interest on a note compels offsetting payments where the note is converted between the computation date and the payment date, the payment of final interest to the noteholder upon maturity is a contractually distinct mechanism, and the contract provision canceling the first mechanism is most appropriately read as enabling the second.

Perhaps.


Orchard Hill Master Fund v. SBAC Corp.

Second Circuit: Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties

International, FSIA


Error for court below to use the Executive Order implementing sanctions to define the scope of foreign state entities under the FSIA.  Definition comes from established constructions.

US corporate entities cannot equitably be read as alter egos of foreign citizens in order to qualify for the protections of a statute requiring foreign nationality.  An equitable alter ego construction can, however, be used to establish the merits of a claim against the entity on behalf of the state.

Insufficient day-to-day control and disregard of the corporate form to establish entity's liability on behalf of the foreign state.

Although second statute is codified proximate to the FSIA, an agency or instrumentality might qualify under one but not the other, since the reference in one statute is to foreign states, and the other refers to terrorist organizations.

Alter ego implies a more profound degree of control than does agency/instrumentality.

Government had a possessory interest in the seized assets because the assets met the terms of the executive order, not because the court trustee had actual possession.



Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties

Second Circuit: In re 650 Fifth Avenue and Related Properties

FRCP, Fourth Amendment


(Summary judgment rulings on merits.)

Sua sponte grant of summary judgment on affirmative defense of statute of limitations procedurally prejudiced the nonmovant, and is barred under FRCP.

Warrant in civil forfeiture action that did not explicitly incorporate the supporting affidavit was insufficiently particular.  Error by the court below in holding that evidence preservation and discovery obligations meant that the evidence was admissible under inevitable discovery, since the action at the time of the service of warrant imposed limited production requirements.

Seven page caption.


In re 650 Fifth Avenue and Related Properties

First Circuit: Marrero-Mendez v. Calixto-Rodriguez

S1983, Religion, First Amendment, Establishment Clause


Even absent consideration of the on-point precedent, denial of qualified immunity for S1983 challenge to police group prayer would be upheld.



Marrero-Mendez v. Calixto-Rodriguez

Out of Time

Out of time -- here are the rest of the links:

Ninth:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/18/14-15695.pdf


Tenth:

https://www.ca10.uscourts.gov/opinions/14/14-1294.pdf

https://www.ca10.uscourts.gov/opinions/14/14-1164.pdf


Eleventh:

http://media.ca11.uscourts.gov/opinions/pub/files/20161366114000.ORD.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201614556.ord.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201614756.ORD.pdf


DC:

https://www.cadc.uscourts.gov/internet/opinions.nsf/6F1E74625D7898A985257FF5005066F6/$file/12-3086-1625475.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/3D375003952F4CDE85257FF500506715/$file/14-5305-1625459.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/19C8333280CE902F85257FF50050673C/$file/15-5051-1625448.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/9890A7B22D2FAFC385257FF500506755/$file/15-5118-1625439.pdf


Federal Circuit:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1038.Opinion.7-15-2016.1.PDF


Cheers.

-CB

Eighth Circuit: James Pudlowski v. The St. Louis Rams LLC

Class Actions, CAFA, Federal Jurisdiction



Absent claim of lack of jurisdiction, removal notice under CAFA need only make a short plain statement with a plausible claim to removal.  As there was no obligation to prove diversity at removal, affidavits establishing diversity can be considered post-removal.


James Pudlowski  v.  The St. Louis Rams LLC

Eighth Circuit: Mary Hurst v. Southern Arkansas University

Bankruptcy


As payments can be made while maintaining a minimal standard of living, no discharge of student loan debt.

Dissent: Undue hardship under totality.


Mary Hurst  v.  Southern Arkansas University

Eighth Circuit: Civic Partners Sioux City, LLC v. Main Street Theatres

Contracts, Property



Covenant outside the lease to obtain the consent of a third party prior to the ending of a lease did not bar the ending of the lease according to the lease's plain terms.  Lease's commitment to make payments between the parties did not bar the ending of the lease.

Although the third party was a more than incidental beneficiary of the lease, this would merely provide a cause of action upon breach.


 Civic Partners Sioux City, LLC  v.  Main Street Theatres

Eighth Circuit: United States v. Shane Rodriquez

Fourth Amendment, Sentencing


Given parole record and explicit general consent to search of the vehicle, vehicle search was a legitimate parole search, and not an unlawful search incident to arrest.

United States  v.  Shane Rodriquez

Eighth Circuit: Capson Physicians Insurance Co v. MMIC Insurance Inc.

Insurance, Contracts


Although state insurance law does not recognize an affirmative duty to inform an insurance company of facts relevant to the contract, state principles of equitable rescission compel a party with superior knowledge of facts relevant to the contract to disclose those facts in order for the contract to withstand challenge.


Capson Physicians Insurance Co  v.  MMIC Insurance Inc.

Eighth Circuit: Kim Shultz v. Bryan Buchanan

S1983, Fourth Amendment


Yelling and a thud sufficed for emergency aid exception to Fourth Amendment bar to entry of home.

Officer's having sent putative victim into the house does not bar the exception.

Qualified immunity on Taser shock, as the injury was de minimis.

Supplemental jurisdiction over state claims was appropriate.


Kim Shultz  v.  Bryan Buchanan

Eighth Circuit: Jose Perez-Garcia v. Loretta E. Lynch

Immigration


Sufficient evidence and due process where process is issued for compulsory removal on the belief that the alien did not comply with an order of voluntary removal, despite petitioner's claim that he had in fact had departed and then later returned with foreign documents to that effect.

Jose Perez-Garcia  v.  Loretta E. Lynch

Seventh Circuit: Thomas Wilson v. Warren County, Illinois

FHA, S1983, Discrimination



Deliberate photographing of property, conduct that triggered psychological hospitalization, would have been done regardless of the plaintiff's condition, and therefore cannot be the basis for a claim of discrimination under the FHA.

Personal and and municipal S1983 claims barred, as officials were unaware that the repossession was unlawful.

Substantive due process not implicated, as a verbal statement of the law was insufficient to create a state-sponsored danger of inaction during the subsequent repossession.


Thomas Wilson v.   Warren County, Illinois

Sixth Circuit: James McKinney v. Bonita Hoffner

Habeas, AEDPA, Miranda


State Supreme Court's holdings -- that a facially equivocal statement was not interrogation and that deft's invocation of right to counsel followed shortly thereafter by an expressed willingness to talk was not a Miranda violation -- might have been made by a fair-minded jurist.

Dissent doesn't account for AEDPA default.

Dissent -- analysis of second utterance should be considered solely as waiver of expressed invocation.


James McKinney v. Bonita Hoffner

Sixth Circuit: Sheet Metal Employers v. Absolut Balancing

Labor, Arbitration


Federal law governs on issues of formation relevant to CBA agreements to arbitrate.


Sheet Metal Employers v. Absolut Balancing

Fifth Circuit: USA v. Quentin Jeffries

Denial of En Banc, Sentencing


Petitioner did not establish that sentence was passed under the residual clause of the Guidelines.

Circuit has held that the Guidelines residual clause is not implicated by the ACCA residual clause holding of the Supreme Court.


USA v. Quentin Jeffries