Daily Archives: February 25, 2021

The U.S. Court of Appeals for the Ninth Circuit has declined to rehear the high-profile Juliana v. United States case, which has been followed by Environmental Law Monitor here, here, and here. Last January, the Ninth Circuit dismissed the case for lack of Article III standing, and last week, a little over a year after its decision ordering dismissal of the case, the court declined the plaintiffs motion for a rehearing.

The Juliana plaintiffs, a group of 21 then-minors, filed suit in the U.S. District Court for the District of Oregon in 2015, alleging the government violated their constitutional rights, specifically a claimed right under the Due Process Clause of the Fifth Amendment, to a climate system capable of sustaining human life. Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). Their complaint alleged that the governments continuing permission, authorization, and subsidization of fossil fuel use, despite being long-aware of its risks, caused various climate-change-related injuries to the plaintiffs, spanning from psychological harm to impairment of recreational interests, exacerbated medical conditions, and property damage. Id. at 1165.

The government first moved to dismiss the plaintiffs claims, but in April 2016, the district court denied the motion, finding that the plaintiffs had standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth Amendment due process right to a climate system capable of sustaining human life, which the court defined as one free from catastrophic climate change that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planets ecosystem. Id. The court also found that the plaintiffs had stated viable due process and public trust claims grounded in the Fifth and Ninth Amendments. Id.

Days before the case was set to proceed to trial in October 2018, the government moved for summary judgment and judgment on the pleadings. The district court granted the governments motions on the Ninth Amendment claim and part of the equal protection claim. However, the court maintained that the plaintiffs had standing to sue. An interlocutory appeal ensued.

In its January 2020 decision, the Ninth Circuit noted that Article III standing requires a plaintiff to have (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable decision. Id. at 1168, citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693 (2000); Jewel v. NSA, 673 F.3d 902, 908 (9th Cir. 2011). The court held that the district court had correctly found the injury requirement met, as at least some of the plaintiffs claimed concrete and particularized injuriesfor instance, one plaintiff claiming that he was forced to evacuate his coastal home multiple times due to flooding. Id. The court further held that the district court correctly found the causation element satisfied, for purposes of summary judgment, as the causal chain was sufficiently establishedplaintiffs alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. Id. at 1169.

However, the court disagreed with the district courts analysis as to whether the plaintiffs claimed injuries were redressable by the court. The court noted that plaintiffs did not claim that the government had violated a statute or regulation, or denied a procedural right, nor did they claim damages under the Federal Tort Claims act. Id. Rather, the plaintiffs sole claim was that the government has deprived them of a substantial constitutional right to a climate system capable of sustaining human life, for which remedial declaratory and injunctive relief was sought. Id. The court noted that not all claims were redressable by a federal court, and therefore the inquiry as to redressability was two-fold, in that plaintiffs must establish that the relief is substantially likely to redress their injuries, and within the courts power to award. Id.

With regard to declaratory reliefthe plaintiffs request for a declaration that the government was violating the constitutionthe court held that this alone was not substantially likely to mitigate the plaintiffs asserted injuries. Id. at 1170. With regard to injunctive reliefplaintiffs request for an injunction requiring the government to cease permitting, authorizing, and subsidizing fossil fuels, and also prepare a plan to draw down harmful emissionsthe court found that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs requested remedial plan. Id. at 1171. Hinging its conclusion on the doctrine of separation of powers, the court found that the plaintiffs request would require the judiciary be policymaker, infringing on the roles of the executive and legislative branches. Id. While the court found that the plaintiffs had made a compelling case that action was needed, their case must be made to the political branches, or to the electorate: [t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes. Id. at 1175.

In March 2020, the plaintiffs filed a petition for rehearing en banc. Amicus briefs were filed by members of Congress, and experts in the relevant fields of constitutional law, climate change, public health, and similar, but last week, on February 10, 2021, the Ninth Circuit upheld the January 2020 decision dismissing the case.

Our Childrens Trust, the non-profit law firm representing the plaintiffs, has released a statement that it plans to take the case to the U.S. Supreme Court, which is no stranger to the case, having ruled on prior motions to stay (here and here), but the firm has also asked the Biden administration Department of Justice for a meeting to discuss settlement options.

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Ninth Circuit Upholds Dismissal of Kids Climate SuitHeaded to the Supreme Court? - Lexology

Law360 (February 22, 2021, 9:46 PM EST) -- The U.S. Supreme Court declined to breathe new life into a $100 million proposed class action leveled against the U.S. Patent and Trademark Office over fees the office collects on patents that are later invalidated.

Christy Inc.'s petition for certiorari, among dozens denied in Monday's Supreme Court order list, argued that the patent office violated the Fifth Amendment when it mostly invalidated the Oklahoma company's vacuum cleaner patent following a challenge from Black & Decker Inc. without refunding the fees the patent office initially charged Christy for those patents.

Christy's 2018 lawsuitagainst the government had come less than a month...

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A Florida woman who threatened to shoot members of the FBI during an ongoing investigation of her ties to the January 6 Capitol insurrection was released on a $50,000 bond, according to her federal court docket in Florida's Southern District Court.

Suzanne Kaye, 59, was charged with one count of knowingly and intentionally transmitting in interstate commercea communication containing a threat to injure a person. Her bond conditions state that she cannot possess any firearms and must allow agents to periodically examine her home without prior notice to ensure she doesn't have any weapons

According to court filings, the FBI received a tip in mid-January suggesting she was present in the US Capitol during the January armed insurrection. When FBI agents reached out to Kaye, she denied being present in Washington, DC, at the time but said she knew of people who did travel there and agreed to an interview with agents.

Just three days after the initial call with FBI agents, however, a sworn affidavit says Kaye posted a video to her non-personal Facebook page, entitled "ANGRY Patriot Hippie," with a caption of "f--- the FBI!!"

In the video, she explained that she had been contacted by FBI agents but would not speak to them any further without an attorney present. She continued to lambaste the agency and said she would exercise her "second amendment right to shoot your f------ a-- if you come here." Kaye also posted the threatening video to her personal TikTok and Instagram accounts.

According to a sworn affidavit from an FBI special agent, Kaye's criminal record includes a violent history. The Palm Beach Sheriff's Office arrested Kaye in 2010 for domestic battery. The same sheriff's office arrested her once again a decade later in 2020 for aggravated assault and possession of a deadly weapon without intent to kill and battery, but all of her charges were dropped and abandoned.

Kaye's court docket shows that she signed a statement invoking the Fifth Amendment and will not be answering any questions from investigators in this case. Her lawyer later filed a demand to find out the names of any expert witnesses the government plans to introduce in the trial.

Kaye's next court date has not been scheduled.

Over 250 people have been arrested for their involvement in the Capitol siege in early January and the FBI is still seeking information to identify many of the Capitol rioters.

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Florida woman charged over threats to FBI asking about Capitol siege - Insider

RELIST WATCH ByJohn Elwood on Feb 18, 2021 at 4:39 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

Even after nearly a month off since the last installment, this weeks round-up is going to be abbreviated because of the press of business. There are about 489 cases that have been scheduled for resolution at this Fridays conference. Only four of those cases are new relists. They concern two basic issues.

The first three cases All Saints Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, 20-534, The Episcopal Church v. The Episcopal Diocese of Fort Worth, 20-536, and Schulz v. Presbytery of Seattle, 20-261 are all examples of something that the Supreme Court used to see a lot of, but seem like theyve been in someone shorter supply recently: property disputes pitting a breakaway faction against a national church for control of property. These cases involve how to apply two lines of case law, both involving leading cases with Jones in the caption. Under one line of authority, exemplified by the landmark 1872 case Watson v. Jones, civil courts adjudicating church property disputes essentially defer to the highest church authorities about who owns the property. But under 1979s Jones v. Wolf, the Supreme Court, by a 5-4 vote, held that courts could adjudicate such cases applying neutral principles of law to determine which party the property deeds, statutes, and church governing documents indicated the property belonged to.

The two cases brought by Episcopal entities involve a Fort Worth, Texas, sanctuary and rectory. The Texas Supreme Court held it belonged to the withdrawing faction rather than the national organization. The Presbyterian case involves church property in Seattle, Washington apparently, the very last downtown Seattle property not occupied by a coffee shop or outdoor clothing store. The Washington Court of Appeals held that courts should defer to the Presbyterian Church U.S.A.s designee, who said the property belonged to the group still affiliated with the national organization.

The national Episcopal Church and affiliated entities explicitly say that if the Texas decision is correct, Wolf should be overruled. The petitioners in the Seattle case, the trustees of a congregation that disaffiliated from the national Presbyterian church, clearly suggest that Watson is not good law. It will be interesting to see if the Supreme Court takes up an issue that has been percolating for almost a decade. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioners in the two cases involving the Episcopal Church.]

That brings us to the second issue, which involves the Armed Career Criminal Act, a three strikes-type sentencing enhancement whose legendary ambiguity has spawned so much litigation that, as Ive observed before, it can sometimes seem as if there are more Armed Career Criminal Act appeals than there are armed career criminals. The ACCA sentencing enhancement applies only if the defendant has three predicate convictions that were committed on occasions different from one another. 18 U.S.C. 924(e)(1). The question in Wooden v. United States, 20-5279 is: When a criminal defendant commits a series of offenses sequentially such as breaking into 10 different mini-storage units one after another (which is just what petitioner William Dale Wooden did one evening) were the offenses committed on occasions different from one another for purposes of the ACCA enhancement?

Some circuits say that offenses are automatically committed on different occasions if they are separated in time by even a short interval; thus the U.S. Court of Appeals for the 6th Circuit said Wooden had 10 prior offenses committed on different occasions because he burgled (thats right, I said burgled) 10 mini-storage units in a row, and he could not have been in more than one unit at the same time. Other circuits say that the offenses have to be treated as the same occasion unless they arose under different opportunities or circumstances meaning the offenses were part of different criminal episodes.

The Wooden petition also presents a second question: whether officers who use deception to gain access to constitutionally protected areas have violated the Fourth Amendment. The police officer here asked if he could step inside Woodens home to stay warm, but his real goal was to track down a fugitive. Once inside, he found a gun that Wooden shouldnt have possessed. The 6th Circuit held that was not a constitutional violation. That arguably splits from a decision of the U.S. Court of Appeals for the 9th Circuit. [Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is counsel to Wooden. I am not involved in the case.]

Thats all for this week. Stay safe (and warm) out there!

All Saints Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, 20-534Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of petitioners in this case.Issue: Whether the Texas Supreme Courts decision awarding the sanctuary and rectory of the petitioner, All Saints Episcopal Church (Fort Worth), to a dissident faction in contravention of the will of petitioners parishioners and an express-trust provision is consistent with the free exercise and establishment clauses.(relisted after the Jan. 22 conference)

The Episcopal Church v. The Episcopal Diocese of Fort Worth, 20-536Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.Issues: (1) Whether the First Amendment requires courts to enforce express trusts in church governing documents (as some jurisdictions hold, in line with Jones v. Wolfs first safeguard), or whether state law may render such trusts unenforceable (as others hold); (2) whether the First Amendment requires courts to defer to churches on questions of polity (as some jurisdictions hold, in line with Jones second safeguard), or whether courts may apply state law to determine the structure of a church (as others hold); and (3) whether the neutral-principles approach may constitutionally be applied either prospectively or retroactively to resolve church-property disputes.(relisted after the Jan. 22 conference)

Schulz v. Presbytery of Seattle, 20-261Issue: Whether, in a dispute between a local congregation and its former denomination over ownership of property to which the local congregation holds legal title, the First Amendment permits courts to apply a rule of absolute deference to assertions of ownership by the denomination.(relisted after the Jan. 22 conference)

Wooden v. United States, 20-5279Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is counsel to the petitioner. I am not involved in the case.Issues: (1) Whether a police officers use of deception to gain entry to a constitutionally protected area violates the Fourth Amendment; and (2) whether offenses that were committed as part of a single criminal spree, but sequentially in time, were committed on occasions different from one another for purposes of a sentencing enhancement under the Armed Career Criminal Act.(relisted after the Jan. 22 conference)

Biden v. Knight First Amendment Institute, 20-197Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences)

Chipotle Mexican Grill v. Scott, 20-257Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are similarly situated for purposes of the collective-action provision of the Fair Labor Standards Act.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle]

United States v. Vaello-Madero,20-303Issue:Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income a program that provides benefits to needy aged, blind and disabled individuals in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.(relisted after the Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences)

Texas v. California, 220153Issue: Whether Californias sanctions against Texas and Texans prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders are born of religious animus and violate the Constitutions privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Dobbs v. Jackson Womens Health Organization, 19-1392Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects womens health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed underPlanned Parenthood v. Caseys undue burden standard orWhole Womans Health v. Hellerstedts balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects womens health from the dangers of late-term abortions.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Massachusetts Lobstermens Association v. Ross, 20-97Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Acts smallest area requirement, including designating ocean monuments larger than most states, by vaguely referencing resources or an ecosystem as the objects to be protected.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Harris v. Maryland, 20-101Issue: Whether, when preindictment delay has caused actual prejudice to the accuseds ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Johnson v. Precythe, 20-287Issues: (1) WhetherBucklew v. Precytheestablished a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiffs opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the states proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuits refusal to permit Ernest Johnson, after the Supreme Courts decision inBucklewwas issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

United States v. Tsarnaev, 20-443Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaevs capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaevs case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaevs trial by excluding evidence that Tsarnaevs older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Republican Party of Pennsylvania v. Boockvar, 20-542Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assemblys plenary authority to direct [the] Manner for appointing electors for president and vice president under Article II of the Constitution, as well as the assemblys broad power to prescribe [t]he Times, Places, and Manner for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Corman v. Pennsylvania Democratic Party, 20-574Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assemblys plenary authority to direct [the] Manner for appointing electors for president and vice president under Article II of the Constitution, as well as the assemblys broad power to prescribe [t]he Times, Places, and Manner for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

McCoy v. Alamu, 20-31Issues: (1) Whether a prison official is entitled to qualified immunity if he gratuitously assaults a prisoner but not every factor fromHudson v. McMillianfor when the use of excessive physical force may constitute cruel and unusual punishment favors the plaintiff, as the U.S. Court of Appeals for the 5th Circuit held here, or whether the plaintiff can nonetheless defeat qualified immunity, as the U.S. Courts of Appeals for the 4th, 6th, 9th and 11th Circuits have held; and (2) whether a prison official who assaults a prisoner without justification is entitled to qualified immunity if past precedent involved different mechanisms of force, as the 5th Circuit implicitly held here, or whether precedent concerning unprovoked assaults by one weapon can clearly establish the unconstitutionality of unprovoked assaults by other weapons, as the 4th and 9th Circuits have held.(relisted after the Jan. 15 and Jan. 22 conferences)

Bridge Aina Lea, LLC v. Hawaii Land Use Commission, 20-54Issues: (1) Whether, as the U.S. Court of Appeals for the 9th Circuits extensive, published ruling eliminates property owners ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including the Supreme Court, the Supreme Court needs to clarify the rules for recovery for temporary regulatory takings; (2) whether, in light of the confusion in the lower courts as to the application of the factors fromPenn Central Transportation Co. v. New York City to the point where it has become almost impossible for property owners to prevail on this theory the Supreme Court should reexamine and explain howPenn Centralanalysis is supposed to be done or dispensed with; (3) whether, in light of the 9th Circuits holding that almost no value loss no matter how great can ever establish a temporary taking under eitherLucas v. South Carolina Coastal CouncilorPenn Central, it is necessary for the Supreme Court to clarify the standards; and (4) whether, in light ofPenn Centrals clear direction that cases like this are to be determined ad hoc, on their individual facts, and the Supreme Courts approval inCity of Monterey v. Del Monte Dunes, that takings liability be decided by a jury, appellate courts need to stay their hands (as mandated by the Seventh Amendments re-examination clause) when as here reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings.(relisted after the Jan. 15 and Jan. 22 conferences)

American Medical Association v. Azar, 20-429Issues: (1) Whether the Department of Health and Human Services rule for the Title X family planning program which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that all pregnancy counseling under Title X shall be nondirective; and (3) whether the rule violatesSection 1554 of the Affordable Care Act, which requires that HHS shall not promulgate any regulation that harms patient care in any one of six ways, including by interfer[ing] with communications between a patient and her provider.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Department of Homeland Security v. New York, 20-449Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained inImmigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Securitys final rule interpreting the statutory term public charge and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Mayorkas v. Cook County, Illinois, 20-450Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained inImmigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Securitys final rule interpreting the statutory term public charge and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Cochran v. Mayor and City Council of Baltimore, 20-454Issues: (1) Whether the Department of Health and Human Services rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agencys statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Oregon v. Cochran, 20-539Issues: (1) Whether the Department of Health and Human Services final rule which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information violates appropriations statutes requiring that all pregnancy counseling in the Title X program shall be nondirective; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating any regulation that creates unreasonable barriers to obtaining appropriate medical care, impedes timely access to such care, interferes with patient-provider communications regarding a full range of treatment options, restricts providers from disclosing all relevant information to patients making health care decisions, or violates providers ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.(relisted after the Jan. 8 and Jan. 22 conferences; directed to file but not relisted for the Jan. 15 conference)

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Disputes over church property and ACCA ambiguity - SCOTUSblog

By Craig Clough

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Law360 (February 18, 2021, 7:47 PM EST) -- California Gov. Gavin Newsom and other state leaders on Wednesday urged a federal judge to toss a suit challenging coronavirus regulations that temporarily closed barber shops and other cosmetology businesses, arguing they are protected under sovereign immunity and the restrictions are legal exertions of power during a health emergency.

The state leaders said the proposed class action must be dismissed because sovereign immunity bars all of the claims brought by Tatoma Inc., including state-law claims, Takings Clause claims and claims for damages, all of which would also fail as a matter of law.

"The challenged public health orders pass constitutional muster as a permissible exercise of the state's emergency authority in a pandemic, and plaintiff has failed to allege any cognizable infringements on its rights," the officials said.

Tatoma operates Atelier Aucoin Salon in La Jolla, California, and filed the suitin January against the governor, Attorney General Xavier Becerra and Executive Officer of the State Board of Barbering and Cosmetology Kristy Underwood, alleging state-issued shutdown orders for barbers, hair salons and other cosmetology-based businesses violate the Fifth and 14th Amendments, as well as various state laws.

Tatoma argued that because the orders closing the businesses rendered state-issued barber and cosmetology licenses obsolete for a public benefit, the state seized their property without compensation in violation of the Takings Clause of the Fifth Amendment.

The lawsuit outlined various pandemic-related orders issued by Newsom since March that shuttered barbers, beauty salons and nail salons while deeming them "non-essential" businesses, including the latest one on Dec. 29. Tatoma argued the orders are "arbitrary and capricious," in violation of the 14th Amendment.

Many other businesses with questionable "essential" value have been allowed to continue operations with limited capacity, while those in the cosmetology industry have not, Tatoma said.

Newsom and the other officials defended the shutdown orders in their motion to dismiss, arguing the actions were a reasonable exertion of their lawful power during a declared public health emergency.

"Indeed, every federal court to consider a challenge to these orders, either on a motion to dismiss or on a motion for a preliminary injunction, has recognized they do," the officials said.

Tatoma also did not plausibly argue that it suffered any constitutional violations or illegal seizure of its property, the officials said, pointing out that the governor lifted the ban on indoor barber shops and cosmetology businesses days after the Jan. 19 lawsuit was filed.

"Rather than being completely prohibited from pursuing its vocation, plaintiff, like all other hair salons in COVID-affected areas of California, was required to temporarily cease indoor salon services at various times over the course of the last year," the officials said. "In fact, plaintiff is currently open and not prohibited from pursuing its chosen vocation. Accordingly, since plaintiff was never completely prohibited from engaging in its calling, plaintiff has 'not been deprived of a protected liberty interest in pursuing the occupation of [its] choice.'"

The officials cited the Ninth Circuit's 2009 ruling ruling in Guzman v. Shewry , which they said held that a liberty charge "must constitute more than a brief interruption of a plaintiff's ability to pursue an occupation or profession."

The officials said that the 11th Amendment confirms a state is immune from a lawsuit brought in federal court by its own citizens or citizens of other states.

The officials added that an exception to state sovereign immunity, established in the U.S. Supreme Court's 1908 Ex Parte Young ruling, would not apply to the plaintiff's first and second causes of action for alleged violations of the Fourteenth Amendment because the Young ruling does not apply to suits seeking monetary damages, which they said is the only relief the plaintiff is seeking.

Counsel for the parties did not immediately respond to requests for comment.

The defendants are represented by Jodi L. Cleesattle of the California Attorney General's office.

Tatoma is represented by Francis A. Bottini Jr., Albert Y. Chang and Anne Beste of Bottini & Bottini, Inc.

The case is Tatoma Inc. v. Gavin Newsom et al., case number 3:21-cv-00098, in the U.S. District Court for the Southern District of California.

--Editing by Regan Estes.

For a reprint of this article, please contact reprints@law360.com.

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Newsom Looks To Shear Barber's Suit Over COVID-19 Orders - Law360

A new petition issued from the American Civil Liberties Union (ACLU) has made it to the Supreme Court and aims to declare the historic male-only military draft to be unconstitutional.

Noting that the U.S. Department of Defense lifted the ban on women serving in combat in 2013, the petition specifies that the obligation for men to register upon turning 18 years old has yet to be applied to women.

Thousands of women have since served with distinction in combat positions across all branches of the military, the formal petition reads. The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require.

Rooted in this argument is the 1981 case Rostker v. Goldberg, which argued that because American men are required to register under U.S. law and women are not, the male-only draft is discriminatory and unconstitutional.

The act gives U.S. presidents the power to require mandatory conscription of eligible adult males into the U.S. Army, but excludes women. Ultimately, the court held that the act does not violate equal protection clauses under the Fifth Amendment, and that the government is allowed to develop an army in times of national emergency.

Now, the petition asks the Supreme Court to overrule Rostker v. Goldberg since women are formally allowed to register for military service and in combat roles.

It is time to overrule Rostker. The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require, the petition states, citing that military departments acknowledge that requiring both men and women to register would 'promote fairness and equity and further the goal of military readiness.

The Department of Defense has made strides in including women in combat roles, authoring a report in 2015 that called its own previous standards excluding women from military work outdated.

In 2017, a committee was established to review the draft policy within the Military Selective Service Act to evaluate if the draft should be expanded to incorporate women recruits. Despite a commission analysis that recommended the inclusion, Congress has yet to make the requirement for women official.

The Washington Post further notes that last week, a group of veterans who held military leadership roles asked the Supreme Court to take the case and rule the male-only draft requirement a violation of the equal protection clause.

The vast majority of men ... have no advantage in readiness over women, who the current statutory scheme forbid from registering, the brief, filed by former National Security Agency (NSA) director Michael Hayden, reportedly said.

Debate over whether or not the draft requirement for men is constitutional has ensued in multiple lower courts, but these revitalized petitions ask the Supreme Court to overturn their original 1981 ruling.

The petitions authors also note that by excluding women from draft registration requirements, it undermines their own equality as U.S. citizens.

Like many laws that have purported to privilege women over men, the men-only registration requirement burdens women too by perpetuating the notion that women are unworthy of full citizenship stature, the report concludes, citing another Supreme Court case regarding the treatment of women in the military. Excluding women from a duty characterized as a fundamental civic obligation conveys 'not only that they are not vital to the defenseof the country but also that they are not expected to participate in defending it.'

The Supreme Court could reportedly take months before deciding to revisit Rostker v. Goldberg.

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Supreme Court asked to declare the all-male military draft unconstitutional | TheHill - The Hill

The criminal justice system is a key part of Americas race problem, according to panelists during a virtual session sponsored Thursday evening by Erie Community Colleges Anti-Racism Task Force.

The topic was "Black and Blue: Policing Communities of Color." For the speakers, the topic has changed considerably because of the storming of the Capitol on Jan. 6 by a mainly white mob. One speaker said the riot would have ended far differently if the mob had been African Americans.

A number of police officers have been arrested for participating and some Capital Police are being probed.

An essential in reshaping policing is who gets into the uniform, according to Canisius College Public Safety Director Kimberly Beaty.

"Not one person is born a police officer. So no one is entitled to the profession of being a police officer," Beaty said. "It is a noble profession. We have to work on hiring the right people, screening. And when you do neighborhood canvasses, like I mentioned, they have to be true. You cant just say, 'Oh, thats Bobs son, lets not really do a background check on him.'"

Beaty is a former deputy police commissioner in Buffalo. She told the meeting there also has to be far better screening and training of officers and longer probationary periods on the street after graduation from the police academy.

Panelists also said policing and the criminal justice system arent changing fast enough in the wake of George Floyd's death and the Black Lives Matter movement. Rochester is making changes, including the creation of a Police Accountability Board.

Board Chair Shani Wilson said the board has a limited budget, but the power to deal with problems.

"I think about the many all-white juries that have allowed officers to escape allegations of horrific wrongdoing against Brown and Black people. The Blue Code shows up in prisons when allegations of wrongdoing against prisoners are countered by convenient and inconsistent testimony from corrections officers, testimony that always trumps the testimony from the prisoners themselves," Wilson said.

Businessman Lamont Williams said the nation must go to its founding document, the Constitution, and follow that charter. Williams said when in the Navy, he took an oath to defend that Constitution, and he wants to make sure everyone knows what the rules are and how to make sure they are enforced on everyone.

"Hold our nation to the rights of all men and women that are given by our Constitution," he said. "But, I think, that as long as we allow systemic racism to permeate our country, we continue to see the laws and rights of the Constitution and the Fifth Amendment in particular, bent, twisted or interpreted in a way to suppress people of color."

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Steve Donohue| North Augusta

Last month the CDC director extended her order banning evictions for most tenants who cannot pay rent due to COVID. Think about that, an unelected federal employee directing a private citizen to hand over her property rights to a third person, without compensation. Yes, the rent is still due, but what do you think the chances are renters will have six to nine month's of rent for the landlord when the moratorium ends?

Let's agree that landlords are not a sympathetic lot. And yes, no one wants destitute people thrown out on the street because COVID cost them their livelihood. Notice the CDC doesn't compensate property owners for the loss of rent. Landlords must still pay taxes, maintenance, utilities, and mortgages, yet the CDC has cut off the rent money to pay those expenses. The ultimate irony the landlord could be foreclosed by the bank for nonpayment but the renter of the other have of her duplex could not be evicted.

Under federal regulation, 42 CFR 70.2, if the director determines the states have not done enough to stop the spread of a communicable disease she may take reasonable measures to stop the spread including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection. There is nothing about property owners, renters, or evictions. If the director has that much power over private citizens across the nation, then we have a serious problem.

If the federal government wants to take private property to stop the spread of communicable disease, then compensate the property owners as required by the fifth amendment, to wit: (no) private property be taken for public use, without just compensation. The ends may be justified, but the means are not.

Steve Donohue, North Augusta

MORE:Moratorium hasn't stopped many in Augusta from eviction

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Letter: CDC vs. landlords. If director has that much power over private citizens, there's a problem. - The Augusta Chronicle

Feb. 13, Trump was once again acquitted by the Senate with a vote of 57-43. Though there was a simple majority, the Constitution requires a two-thirds majority 67 votes to remove the president from office. In this case, the Senate needed 67 votes to convict Trump. Without enough votes, Trump was acquitted, yet again.

Before any discussion, it is necessary to explain why the impeachment happened for a second time.

Jan. 6, shortly after Trumps violence-inciting speech, a massive insurrection broke out in Washington D.C. The mob stormed the U.S. Capitol, trying to stop the Senate from verifying Joe Bidens presidential victory.

Trump was impeached by the House of Representative after Pence refused to initiate the Twenty-Fifth Amendment. If convicted, he would never hold public office again, which would prevent him from further endangering the democratic process and lying to the American people.

The insurrections mark that for the very first time in U.S. history, the transition of power between the current and future president was not peaceful. It also marks the first time since 1812 that the Capitol was attacked. More importantly, it represents the double standard of policing. Last but not least, this acquittal is the most accurate reflection of the double-standard held by incumbent Republicans.

Trump undoubtedly incited the violence at the Capitol. Based on what is known as the insurrection clause in the Fourteenth Amendment, it states that any aid or assist of insurrection or rebellion against the United States is illegal.

Police gave Trump-supporting mobs a free pass at the Capitol, double standard on policing must changeSixty-nine percent of Americans felt that one of the biggest contributors to the past summers protests for racial equality was Read

Despite a failed conviction, the 57-43 decision still means that a majority of the Senate believes Trump is guilty. It is a shame to see that the leader of the free world is not held accountable for a federal crime. It is alarming that a federal crime can be dismissed simply because of party lines.

The implications of not convicting Trump are far-reaching. Foremost, they imply the possibility of another four years under an extreme right-wing populist. So far, things have been chaotic because of Trump. Due to his misinformation and ignorance, about 417,000 Americans have died of the pandemic.

Because of Trumps xenophobic policies such as America First immigrants and the international population, including international students, have been deterred. These are the two quintessential economic resources for the U.S. GDP site.

Because of Trumps tariff and Trade War policies with U.S. allies such as Germany and China, he indirectly raised the price of domestically produced goods, causing the U.S. government to run on an increasingly large federal budget deficit. According to Appendix B-47 in the Economic Report for the President, the U.S. federal budget deficit grew about $100 billion annually from 2016 to 2019.

Trumps xenophobic policies reduces international student population in USThough the 2020 presidential election is now over, politicians and reporters saw this last week as a historical turning point Read

Trumps predecessor, President Obama, did the opposite. He reduced the deficit effectively at a steady rate after the 2008 financial crisis. The numbers do not lie. Four more years of Trump means a larger federal budget deficit, economic depression, and most of all, more lies and misinformation that endanger the American people.

Knowing these implications, 43 Senators still refused to convict Trump. Sen. Ron Johnson (R-WI) is one of them.

Johnson, like the other 43 republicans, is a coward who only worries about his own political interest rather than the welfare of his constituents. He refuses to abide by the Constitution that he swore to protect and serve.

Johnson, by siding with Trump, sends the wrong message. Not too long ago, a conservative political group in Wisconsin urged members of the Republican party to prepare for war. By siding with Trump, Johnson silently supports the insurrection and the mob who stormed the Capitol.

This double-standard legislation is typical for Republican senators. Sen. Mitch McConnell (R-KY), at the beginning of the impeachment process, said that the vote to convict Trump is a vote of conscience. Yet at the trial, he argued that Trump is constitutionally not eligible for conviction.

Social media Trump ban protects public safety, does not violate First AmendmentJan. 6, a massive violent crowd of President Donald Trumps supporters stormed the Capitol Building in Washington D.C. and attempted Read

Where was McConnells and the other 42 Senators conscience when the real trial happened? Nowhere to be seen. They all went into hiding because they are afraid of what Trumps allies might do to them if they convicted him. The hypocrisy must be stopped.

At the moment, even if Trump cannot be tried as the president, he still can and absolutely should be tried as a private citizen whose actions present a danger to the U.S. government and to the American people.

This time, the prosecutor can use the insurrection clause, which is Sec. 4 of the Fourteenth Amendment, charging Trump with the crime of providing assistance to the insurrection against the U.S. government.

If successfully convicted, the judge should offer him no plea deal, a life sentence, and strip him the right of participating in any local, state, or federal election.

We, as constituents and as American citizens, cannot let people like Trump and those who support violence instead of laws to hold offices.

With that being said, in the next election, we have a social responsibility to hold Johnson accountable for his actions and potential threats to public safety. It is our duty to vote him and other Trump allies out of the office so proper social and constitutional orders can be restored to their normal state.

Ken Wang ([emailprotected]) is a sophomore majoring in political science.

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Trump is acquitted again, Sen. Ron Johnson sends the wrong message by siding with him - UW Badger Herald

Formerly powerful movie mogul Harvey Weinstein was indicted in May 2018 and charged with five sex crimes. He was found guilty on two charges. USA TODAY

One year afterHollywood mogul Harvey Weinstein was convicted of sex crimes, the deadly COVID-19 pandemic has taken over the headlines, and the #MeToo movement that his case helped propel has lost some steam and attention.

What has been accomplished by the three-year-old campaign against sexual harassment and abuse, aside from Weinstein's conviction?

Scores of entertainment and media figures have been accused and driven from their careers. A handful of other men are in the early stages of criminal prosecutions.

Numerous lawsuits have been filed, especially against Weinstein and his company but remain mired in legal limbo as attorneys for plaintiffs and defendants dicker over damages.At least one #MeToo-related lawsuit may be over soon: A tentative settlement has been reached in a class-action lawsuit that alleged James Franco intimidated students at an acting and film school he founded into gratuitous and exploitative sexual situations, according to attorneys for the plaintiffs.

Meanwhile, Hollywood has vowed to do something about sexual misconduct in the industry. Advocacy groupssuch as Time's Uphave been established to hold feet to the fire by, among other tactics, condemning those who attempt a comeback.There have been protests and news conferences, mediasurveys and reports.

A century after the founding of Hollywood, the long, sordid story of sexual harassment in the industry is fully out in the open. Whether it's been fully addressed and eliminated is another matter.

Gayle King asked FKA twigs 'Why didn't you leave?'Her question is part of the problem.

'There should be no comeback': Time's Up condemns return of Brett Ratner after sexual misconduct allegations

Harvey Weinstein arrives at court for his sex crimes trial on Feb. 10, 2020, in New York City.(Photo: JOHANNES EISELE/AFP VIA GETTY IMAGES)

Singular as it is, the Weinstein case has put wrongdoers on notice of potential consequences of illegal and unethical behavior.

Weinstein was convicted of two sex crimes, including third-degree rape, by a Manhattan jury on Feb. 24, 2020. He wassentenced on March 11 to 23 years in an upstate New York prison.

So far, Weinstein is the only major Hollywood figure who has been criminally charged and convicted of sex crimes stemming from the flood of sexual-misconduct allegations that poured outafter exposs about the former industry power broker's behavior appeared in The New York Times and The New Yorker in October 2017.

Thereare at least two other criminal cases in the pipeline in Los Angeles against lesser-knownentertainment figures, but so far the #MeToo movement has not produced a flood of prosecutions of A-list names like Weinstein.

Meanwhile, the pace of public accusations lodged against Hollywood and media figures has slowed but not stopped.

Weinstein, 68, is incarcerated atWende Correctional Facility near Buffalo in Erie County,, having completed the first year of his sentence. He'sawaiting possible extradition (he's fighting it) to Los Angeles County to face similar sex crime charges there.

He and his legal team have vowed to appeal his Manhattan conviction but they have not yet filed the brief with the state appeals court.

Although he tested positive for COVID-19 when he arrived at the prison last March, he has recovered andlooked relatively healthy during a virtual hearing in December on extradition.

Harvey Weinstein's defense team, Donna Rotunno, Damon Cheronis and Arthur Aidala, huddle in the hallway during jury deliberations in Weinstein's sex-crimes trial in New York on Feb. 21, 2020.(Photo: RICHARD DREW/AP)

According to his spokesman, Juda Engelmayer, Weinstein's legal team isworking on "the final touches" of his appeal brief and expects to file it within 20 or 30 days. Meanwhile,the fallen mogul is doing "all right" in prison.

He's "not enjoying the prospect of a longer term there, so he occupies his time with his legal strategy while reading history books about various luminaries and academics," Engelmayer said in an email to USA TODAY.

"His focus is on keeping in touch with his children and focusing on being able to get out eventually and spend quality time with them as they grow up."

The extradition process has been delayed twice and is nowset for early April, as a result ofthe pandemic still raging in Los Angeles County.

Also, a new district attorney, George Gascn, has just been elected in the county; he was not involved in the investigation and filing of charges against Weinstein in LA.

"There is no new information on the Los Angeles action, and we are watching the developments there very closely," Engelmayer said.

George Gascon was sworn in as the newly elected Los Angeles County District Attorney in December.(Photo: DAMIAN DOVARGANES/AP)

In the California case, Weinstein is accused of 11 felony counts of sexual assault, including forcible rape, against five women in encounters at Beverly Hills hotels dating back to 2004.

Former District Attorney Jackie Lacey, Gascn's predecessorwhom he defeated in November,established a task force to investigate and prosecute sexual misconduct in Hollywood in November 2017in the wake of the Weinstein allegations and#MeToo.

So far, Weinstein has been the task force's major target;a number of other cases presented by police agencies to the task force were declined, including two accusations against Weinstein.

Two other Hollywood figures have been charged with sex crimes as a direct consequence of #MeToo, both in Southern California.

Danny Masterson, star ofThat 70s Show, has been charged by Los Angeles prosecutors with raping three women in the early 2000s. He has pleaded not guilty to all charges.

Extraction and Atomic Blonde" producer David Guillodhas been charged with multiple sexual assaults, dating from the early 2000s and involving four women,by prosecutors in Santa Barbara County. He has pleaded not guilty.

Danny Masterson, left, with his attorney Tom Mesereau in court in Los Angeles on Sept. 18, 2020.(Photo: LUCY NICHOLSON/AP)

Many consider the prosecution of Bill Cosby a #MeToo case, although not directly. He wasaccused of sex crimes in suburban Philadelphia years before #MeToo andwas convicted of three counts of aggravated indecent assault at his second trial in 2018. He is serving a three- to-10-year sentence in a Pennsylvania state prison.

Cosby has sought to be released from prison early because of his age (83),his health (he's blind), and the risk of contracting COVID-19. He has been turned down every time he's asked.

The state's Supreme Court accepted Cosby's appeal and heard conflicting arguments in Decemberabout whetherCosby was fairly convicted or if his trial was flawed by evidence and testimony that should have been excluded. A ruling on whether to confirm or overturn his conviction is pending.

Not every accusation of sexual misconduct can be pursued by prosecutorsbecause the allegations are too old andfall outside statutes of limitations, or there's not enough evidence or because witnesses can't be found or refuse to testify.

Other celebrities accused and investigated were either never charged or their cases dismissed. The most prominent was Oscar winner Kevin Spacey, who was accused of groping an 18-year-old bus boy in a Nantucket, Massachusetts, bar in2016. The case collapsed at the pretrial stage in July 2019 when the accuserabruptly invoked his Fifth Amendment right against self-incrimination while being questioned about the mysterious disappearance of his cellphone from evidence.

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A few accused men have attempted to return to Hollywood, such as filmmaker Brett Ratner, who parted ways with Warner Bros. in November 2017 after seven women accused him of sexual harassment and assault.

After a report by Deadline that independent film company Millennium Media had hired Ratner to direct a Milli Vanilli biopic, Time's Up issued a scathing statement entitled, "There Should Be No Comeback for Brett Ratner."

Not only did Ratner never acknowledge or apologize for the harm he caused, but he also filed lawsuits in an attempt to silence the voices of survivors who came forward a tactic right out of the predators playbook," Time's Up president and CEO Tina Tchen said in the statement. "You don't get to go away for a couple years and then resurface and act like nothing happened. We have not and will not forget. And Millennium Media shouldnt either. There should be no comeback. #wewontforgetbrett."

The most culturally influential consequence of Weinstein's criminal case continues, albeit at a slower pace than infall 2017, when public accusations against star entertainers andmedia figures surfaced almost daily.

Just in recent months, three years after the #MeToo surge, entertainment figures have come forward to call out other celebrities with accusations of sexual and domestic abuse and abuse of power on the job.

Evan Rachel Wood and Marilyn Manson(Photo: JAMIE McCARTHY, KEVIN WINTER/GETTY IMAGES)

Evan Rachel Wood, a"Westworld" star, posted Feb. 1 onInstagram that her former fianc, musician Marilyn Manson (aka Brian Warner),"horrifically abused me for years," an allegation he denied ashorrible distortions of reality.

Wood's accusations, which were followed by similar allegations from other women, led to Manson being dropped by his recording label and by his agent.

On Feb. 19, the Los Angeles County Sheriff's Department confirmed it is investigating domestic violence allegations against Manson in incidents said to have occurred between 2009 and 2011.

It wasn't the first time Wood has spoken out aboutallegations of misconduct. In 2016, she posted a letter on Twitter, claiming she had been raped in the distant past by two different people but did not name them.

In 2018, she talked about her experiences with rape and torture during testimony before a House committee in support of a nationwide bill of rights for sexual assault survivors,but she did not name names.

Shia LaBeouf's "Pieces of a Woman" co-stars discuss lawsuit filed by musician FKA twigs alleging that the actor was physically and emotionally abusive during their relationship. (Jan. 15) AP Entertainment

In December,British musician FKA twigs sued her ex-boyfriend, troubled movie star Shia LaBeouf, for repeated abuse andphysical, emotional and mental assaults he allegedly inflicted in their nearly yearlong relationship.

Her accusations prompted similar allegations from other women in LaBeouf's life.He has denied the accusations in the lawsuit.

On Feb. 10, Charisma Carpenter, star of WB's "Buffy the Vampire Slayer," posted a lengthy statement on Twitter accusing "Buffy" creator and "Avengers" director Joss Whedon of emotional abuse and abuse of power on the set.Her accusation followed "Justice League" actor Ray Fisher's similar allegations about Whedon in July 2020. Whedon has declined to commentto USA TODAY.

'It's just their awful personalities': Martha Stewart on knowing accused men in Me Too movement

'Framing Britney': New documentary exposes a problem bigger than Britney

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Harvey Weinstein has been behind bars for a year: What's changed? - USA TODAY