Ninth Circuit Rejects Nationwide Block of Trump Administration’s ACA Birth Control Rules

written by carly rolph


A decision by the United States Court of Appeals for the Ninth Circuit has narrowed a lower court’s nationwide ban on Trump administration rules exempting employers with moral or religious objections from providing birth control coverage otherwise required by the Affordable Care Act. In a 2-1 decision, the Court held that the district court had abused its discretion when it issued a nationwide preliminary injunction blocking the rules, and that the injunction should have been limited to the five states that brought the legal challenge.


The Affordable Care Act (“ACA”), passed under the Obama Administration, requires that plans in the health insurance marketplace cover contraceptive methods and counseling for all women, as prescribed by a health care provider. The ACA further mandates that these plans cover contraceptive services without charging a co-payment.

In October 2017, the Department of Health and Human Services (“HHS”) issued rules that vastly expanded the range of companies that could opt out of the ACA contraceptive mandate. These rules would allow some employers to deny insurance coverage of birth control because of their religious or moral beliefs.

In December 2017, California, Delaware, Maryland, New York and Virginia filed a lawsuit alleging that the new rules were illegally passed by federal agencies without giving notice or seeking public comment. The states contended that the Trump administration had made the change in policy a nationwide issue by failing to comply with the Administrative Procedure Act.

The Decision

In a 2-1 decision on December 13, 2018, the Ninth Circuit held that the district court had abused its discretion when it issued a nationwide preliminary injunction blocking the rules, and that the injunction should have been limited to the five states that brought the legal challenge. The majority found that the nationwide injunction was too broad, and that an injunction applying to just California, Delaware, Maryland, New York and Virginia, the states that brought the legal challenge, would have given them total relief.

The majority found that the record did not show what the economic impact would be on the rest of the nation. “District judges must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts, from Alaska to Puerto Rico to Maine to Guam,” United States Circuit Judge J. Clifford Wallace wrote in the majority opinion.

However, the court did find that the district court correctly concluded that the five states were likely to suffer irreparable harm, and that the lower court did not abuse its discretion in finding that the balance of equities and the public interest leaning in favor of granting the injunction. The majority found that the record was well-developed on how the rules would harm the five states.

In addition, the court said the district court had properly found that California, Delaware, Maryland, New York and Virginia were likely to prevail on their allegations that the United States Departments of Treasury, Labor and HHS wrongly proposed the two interim final rules in October 2017 without a notice and comment period.

The majority did not find the agencies’ arguments in favor of foregoing the comment period convincing. The agencies asserted that bypassing the notice sand comment period was justified by the need to lessen legal and regulatory uncertainty on the issue, stop the Federal Religious Freedom Restoration Act violations, and reduce health care costs. The vourt classified the agencies’ arguments as “general [p]olicy justifications,” finding they weren’t enough to demonstrate good cause for forgoing the comment period. The majority also found that the agencies’ contentions that certain provisions in the ACA allowed them to bypass the comment period for the rules was also likely to fail.

Looking Forward

While the Ninth Circuit’s decision would allow enforcement of the new rules in many states, a preliminary injunction in a separate case in Pennsylvania remains in effect, so the rules are still blocked nationwide.

In addition, the Trump Administration recently issued a new set of rules similar to the 2017 rules, allowing for some companies to opt out of contraceptive e coverage on nonreligious “moral convictions.” These rules will take effect January 14, 2019, superseding the 2017 rules and leaving the injunctions in California and Pennsylvania moot.


Birth Control Benefits,,  (last visited Dec. 16, 2018).

Cara Bayles, Nationwide Ban OK For Trump Birth Control Rules, States Say, LAW 360 (Aug. 17, 2018).

Danielle Nichole Smith, 9th Circ. Pares Nationwide Block of ACA Birth Control Rules, LAW 360 (Dec. 14, 2018).

Samantha Schmidt, Court partially blocks Trump administration rules allowing some employers to deny birth control coverage, THE WASHINGTON POST (Dec. 13, 2018).

Gorsuch and Sotomayor Criticize the Court for Not Hearing a 6th Amendment Right to Confrontation Issue

Written by Julia Gorski


On November 19, 2018, the United States Supreme Court denied certiorari to a 6th Amendment Confrontation Clause issue involving the use of a toxicology report in a drunk driving case. In a four-page dissent, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, criticized the Court for not hearing the appeal.

Background: Stuart v. Alabama

The 6th Amendment Confrontation Clause provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action. The purpose of the clause is to prevent the defendant from being convicted of a crime without first giving the defendant an opportunity to face his or her accusers and test their honesty and truthfulness in front of the jury.

In the case seeking review, Stuart v. Alabama, the defendant, Vanessa Stuart, was convicted of criminally negligent homicide and driving under the influence after causing a fatal car accident. At Stuart’s trial, the state introduced toxicology reports containing estimates of her blood alcohol content at the time of the accident. The reports were prepared and signed by forensic scientist Belicia Sutton. Sutton did not testify at trial and Stuart was not given an opportunity to cross-examine her before trial. Rather, the reports were introduced through the testimony of Jason Hudson, chief of the Department of Forensic Sciences, who was not present when Stuart’s blood was handled. Stuart objected to the introduction of the toxicology reports as evidence absent Sutton’s testimony, claiming it violated her right to confrontation. However, the reports were admitted, and Stuart was ultimately convicted.

On appeal, the Alabama Court of Criminal Appeals affirmed the conviction, holding that Hudson’s presence at trial was sufficient under the Confrontation Clause. Stuart sought review from the United States Supreme Court. The issue on appeal was whether the Court of Appeal’s decision was consistent with Bullcoming v. New Mexico, where the Supreme Court held that introducing a lab report at trial without testimony from the individual who prepared the report violates the Confrontation Clause. The Court denied hearing the case.

Gorsuch and Sotomayor Dissent

In his four-page dissent, Justice Gorsuch, joined by Justice Sotomayor, criticized the Court in denying certiorari. Referring to the Constitution’s promise that an individual has the right to confront his or her accuser, Gorsuch wrote:

That promise was broken here. To prove Vanessa Stuart was driving under the influence, the State of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after her arrest. But the State refused to bring to the stand the analyst who performed the test. Instead, the State called a different analyst. Using the results of the test after her arrest and the rate at which alcohol is metabolized, this analyst sought to estimate for the jury Ms. Stuart’s blood-alcohol level hours earlier when she was driving. Through these steps, the State effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction. The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.

Justice Gorsuch’s frustration with the court is attributable to the last Supreme Court decision in this area of the law in 2012, Williams v. Illinois. Similar to Stuart v. Alabama, the issue in Williams was whether the testimony of an expert witness that is based on a test the expert did not personally perform violates the Confrontation Clause. There was no clear majority ruling, but four separate opinions were written by Justice Samuel Alito, Justice John Roberts, Justice Anthony Kennedy, and Justice Stephen Breyer. The four-justice plurality created confusion among lower courts attempting to abide by the Court’s ruling. Justice Gorsuch saw Stuart v. Alabama as a chance for the Court to clarify this issue, concluding his dissent with, “I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area.”


Forensic evidence plays a decisive role in today’s trials. Introducing lab reports without accompanying testimony from the individual who actually prepared and signed the report can be problematic for a defendant when considering the issues facing the forensic science community today. A large portion of forensic analysis is subjective, and there are no national uniform standards or certifications regarding subjective analysis. Consequently, great fragmentation exists among practices across states, counties, and within laboratories themselves. One scientist can test evidence and come to a different conclusion than another scientist testing the same evidence. One scientist’s error or threat of bias will not be the same as another’s. In light of the foregoing, lower courts must use great caution in admission of forensic evidence at trial.

While the Court’s denial of certiorari in Stuart v. Alabama does not effectively aid lower courts struggling to abide by the Court’s holding in Williams, Justice Gorsuch’s dissent is a noteworthy view of a new Justice on the Confrontation Clause and highlights the confusion created by the Supreme Court in this area of the law.


Brief of Respondent in Opposition to Petition for Writ of Certiorari, Stuart v. Alabama, 586 U.S. ___ (2018) (No. 17-1676), 2018 WL 3855210.

Bullcoming. v. New Mexico, 564 U.S. 647 (2011).


Legal Info. Inst., Right to confront witness (last visited Nov. 27, 2018).

Petition for Writ of Certiorari, Stuart v. Alabama, 586 U.S. ___ (2018) (No. 17-1676), 2018 WL 3032904.

Stuart v. Alabama, 586 U.S. ___ (2018).

Williams v. Illinois, 567 U.S. 50 (2012).

Photo courtesy of James Publishing.

Supreme Court to Determine Whether the Government is a Person Under the America Invents Act

Written By Christina E. Brule


On October 26, 2018, the United States Supreme Court granted certiorari to determine whether the government is a “person” who may petition to institute review proceedings under the America Invents Act. Previously, the United States Court of Appeals for the Federal Circuit upheld a decision by the Patent Trial and Appeal Board that stated the Government was a “person” and had standing to file the petition.


In 2011, Congress passed the Leahy-Smith America Invents Act (“AIA”), which created several quasi-adjudicatory proceedings, including the review of covered business method (“CBM”) patents, that the Patent Trial and Appeal Board (“PTAB”) oversees.

Return Mail, Inc. (“RMI”), founded in 2000, serves end-user companies and print mail service providers, which are companies likely to receive large quantities of return mail. RMI offers three products: RMI READ, a barcoding system that eliminates the handling of return mail; RMI On Site, a process that reduces the hours of labor required; and RMI reAddress, a search tool that updates your recipient address databases.

RMI patented RMI READ as a CBM patent: U.S. Patent No. 6,826,548 B2 (“the ’548 Patent”). Pursuant to § 18 of the AIA, a petition requesting CBM patent review of claims 39-44 of the ’548 Patent was filed by the United States Postal Service and United States of America (collectively “USPS”). RMI also brought suit against the United States for infringement of the ’548 Patent in the U.S. Court of Federal Claims.

The PTAB concluded that claims 39-44 of the ’548 Patent were unpatentable. Throughout the proceeding, RMI argued that USPS lacked standing to petition for CBM patent review. However, in its final written decision, the PTAB determined that USPS had standing under § 18 of the AIA. RMI appealed the final written decision of the PTAB.


On appeal, RMI put forth two alternative arguments: (1) USPS does not meet statutory standing requirements to petition for CBM review or (2) the ’548 Patent claims are not directed to ineligible subject matter and are patentable. The Supreme Court has granted certiorari to review the first argument.

RMI argued that because it brought suit under 28 U.S.C. § 1498, an eminent domain statute, the USPS is statutorily barred from petitioning for review of its CBM patent. The court disagreed, stating that “nothing in the text of § 18(a)(1)(B) indicates an intent to restrict ‘infringement’ to suits that fall under the Patent Act.”

Furthermore, RMI argued that the government has an implied license to practice patented inventions. Once again, the court disagreed. The court stated that “[w]hen the government has infringed, it is deemed to have ‘taken’ [a] patent license under an eminent domain theory.”

Thus, the court concluded that USPS had standing within the meaning of § 18(a)(1)(B).


The United States Court of Appeals for the Federal Circuit affirmed the decision of the PTAB. The court held that USPS had standing to institute review of a CBM patent under the AIA.

In addressing the dissent’s position, that the government is not a “person” within the meaning of § 18(a)(1)(B), the court stated: “we believe the better reading of ‘person’ in § 18(a)(1)(B) does not exclude the government.”


In the 2-1 decision of the court, Judge Newman dissented. The dissent argued that generally a “person” defined by statute does not include the United States and its agencies unless expressly stated in the statute.

Judge Newman offered multiple references in support of his interpretation: the language used in § 18(a)(1)(B) is “person;” The Dictionary Act, 1 U.S.C. § 1 excludes the government from the definition of the term “person”; and numerous cases to establish precedence that the “person” is “ordinarily construed to exclude the government.”

Looking Ahead

The USPS contends that the statutory context around the AIA indicates that the term “person” should be construed to include the government.

Return Mail notes that the question of whether the government constitutes a “person” under the AIA is important because federal agencies often respond to suits of infringement by filing petitions that invoke the jurisdiction of the PTAB.

This case continues the recent trend of the Supreme Court to take more patent-related cases.


28 U.S.C. § 1498(a).

AIA § 18, Pub. L. No. 112-29, 125 Stat. 284, 329-31 (2011) (CBM review).

Company Information, Return Mail, Inc. (last visited Nov. 10, 2018).

Gene Quinn, Federal Circuit says U.S. government is a ‘person’, can file CBM to challenge patents, IPWATCHDOG (Aug. 29, 2017).

Leesona Corp. v. United States, 599 F.2d 958 (Ct. Cl. 1979).

Patent Trial and Appeal Board, USPTO (last visited Nov. 10, 2018).

Return Mail, Inc. v. United States Postal Serv., 868 F.3d 1350 (Fed. Cir. 2017).

Steve Brachman, Supreme Court to Determine if Federal Government Is a ‘Person’ Eligible to Petition the PTAB, IPWATCHDOG (Oct. 31, 2018).

United States Postal Serv. v. Return Mail, No. CMB2014-00116, 2015 Pat. App. LEXIS 12853 (P.T.A.B. Oct. 15, 2015).

Photo courtesy of GoLegal.

The Music Modernization Act: A Monumental Transformation of Federal Copyright Protection in Digital Music

written by Emily M. Welch


With the monumental shift from physical to digital music consumption in recent years, an update on legislation addressing digital developments in music has become a necessity. On October 11, 2018, President Donald J. Trump signed into law the Music Modernization act, which is viewed as the most sweeping reform to copyright law in decades. The Music Modernization act, which was supported by a majority of songwriters, publishers, streaming services and politicians across the spectrum, revamps Section 115 of the U.S. Copyright Act in an attempt to bring copyright up to speed for the streaming era.


Prior to the passage of the act, there were only two real options for starting a music service: clear every song manually before putting it online or set aside a fund and expect to get sued. Licensing was obtained under a “piecemeal” approach, which required music streaming services to obtain licensing for digital music on a per-work, per-song basis. However, even though licensing was a requirement, digital music providers only had to file bulk notices of intent with the Copyright Office for the rights-clearance process. The Copyright Office only required authorship to be identified “if known”. In a time where proper attribution was virtually impossible, many songwriters were not getting the royalty payments that they deserved. The process was time consuming and costly, and setting money aside in anticipation of litigation was seemingly the better approach.

When copyright protection was extended to song recordings, Congress chose not to include pre-1972 works in the coverage. Owners of pre-1972 musical recordings and users of those recordings were in constant dispute over whether copyrights existed in those works, and if so, what level of compensation was due.

Act’s Main Pieces of Legislation

The Music Modernization act brings two major changes to the preexisting copyright laws that fixes the issues above: it changes the procedure by which millions of songs are made available for streaming services and compensates artists for digitally downloaded pre-1972 master recordings. The act provides benefits for songwriters, by enhancing the royalty process, and also music streaming services, by providing confidence that, if they follow the process, they can accurately license all the musical works on their service without fear of billion dollar lawsuits against them.

In an effort to improve the licensing process, the Music Modernization act created a mechanical licensing agency that will be able to issue licenses to digital services and collect and distribute royalties to songwriters and publishers. The agency, called the Mechanical Licensing Collective (“MLC”), will be able to identify rights holders and create a public database of musical works and sound recordings so that songwriters and publishers can be matched to their songs and timely payments can be made. The MLC can also provide blanket licenses to digital music service providers, which would allow them to use any song and immunizes them from infringement lawsuits.

For the first time ever, the act provides that songwriters and artists will receive royalties on songs recorded before 1972. The protection for pre-1972 songs now has a term limit of 95 years from the date of publication, with an additional period tacked on the end based on a range that depends on how recently the song was published. The act also fully federalizes these song recordings, preempting state laws and incorporating all the normal limitations to copyright law, like fair use, that apply to any other copyrighted work.

Opposition to the Act

While the act gained unanimous support in Congress, it has not proceeded without opposition and criticism. Jim Meyer, Chief Executive Officer of SiriusXM, expressed his opposition due to concerns regarding the additional financial burden on digital music providers. The satellite radio provider would be forced to pay for pre-1972 songs, while its “terrestrial radio” rivals would not be held to the same requirements. Considering that SiriusXM and its AM/FM competitors are in the same market, Meyer argued that it is bad public policy to hold them to different licensing requirements.

Looking Forward

While the Copyright Office is currently working on a number of regulations and public outreach to solicit information to aid in the formation of the Mechanical Licensing Collective, the full effects of the law remain to be unseen. The future of digital music protection under the Music Modernization Act will be dictated by a formation of some of copyright’s most prominent experts and technological masterminds. Only time will tell the impact of copyright’s most recent revolution.


Amy Goldsmith, Musically Inclined: The Music Modernization Act of 2018, IPWatchdog (Oct 30, 2018).

Anthony S. Volpe & Savannah G. Merceus, The Tune Is Changing in the Digital Music Landscape, LegalTech News (Oct. 30, 2018).

Bill Donahue, Here Are The Final Tweaks To The Big Copyright Bill, Law360 (Sept. 28, 2018).

Bill Donahue, Trump Signs Music Modernization Act Into Law, Law360 (Oct 11, 2018).

Dani Deahl, The Music Modernization Act has been signed into law, The Verge (Oct 11, 2018).

Ed Christman, President Trump Signs Music Moderinzation Act Into Law With Kid Rock, Sam Moore As Witnesses, Billboard (Oct. 11 2018).

Jim Meyer, SiriusXM CEO Jim Meyer Explains the Trouble With The Music Modernization Act, Billboard, (Aug. 23, 2018).

Jordan Bromley, The Music Modernization Act: What Is It & Why Does It Matter?, Billboard (Feb. 23, 2018).

Nilay Patel, How the Music Modernization Act will help artists get paid more from streaming, The Verge (Oct 2, 2018).

How the Harvard University’s Admissions Trial Could Make Its Way to the Supreme Court





In 2014, the Students for Fair Admission group filed a lawsuit against Harvard University that alleged Harvard’s admissions process was discriminatory. This lawsuit began a three-week trial in United States District Court before Judge Allison D. Burroughs on October 15, 2018. The Students for Fair Admissions group is a nonprofit led by Edward Blum, a legal strategist. The group began this action by representing a first-generation Asian-American who applied to Harvard for the Class of 2014, but was not admitted. The group alleges that the Harvard admissions committee practices racial discrimination against Asian-American applicants, and that Harvard’s overall admission process does not analyze applicants equally. Harvard has continuously denied these allegations and emphasizes that race is only one of many factors considered when examining an applicant’s file. The ruling of this case could generate implications for other colleges throughout the United States that consider race in the admissions process.

Students for Fair Admissions Argument

The lawsuit accuses Harvard of imposing tougher standards for Asian-American applicants by using a discriminatory “personal rating” category that includes recommendations by professors, personal essays, and interviews. The Students for Fair Admissions also argue that Harvard practices “racial balancing,” in their practice of accepting a certain mixture of races. The group’s allegations rely on a study performed by Peter Arcidiacono, a Duke University economist. The study indicated that even though Asian-Americans uphold strong academic records and higher SAT scores that surpassed white applicants, they are admitted at a lower rate when compared to wealthy and well-connected applicants, such as the children of the University’s alumni and donors, and recruited athletes. The Students for Fair Admissions note that these prioritized applicants are also likely to be found on the dean’s list before admittance. The group is ultimately fighting for a Harvard admissions process that does not consider a student’s race, as well as the opportunity for the court to take a closer look at overturning affirmative action in higher education.

Harvard University’s Argument

Harvard leaders argue that race is considered only narrowly, and that Harvard’s share of Asian-Americans has grown yearly, reaching 23 percent of the current freshman class. Harvard also argues that it would be unable to achieve a population of diverse students without considering race within its admissions process. Harvard upholds that the statistical analysis presented by the Students for Fair Admissions is “deeply flawed” and generates a “misleading narrative” about the Harvard admissions process. The numerical ratings that applicants receive in the admissions process are based on various factors, including academics, extracurricular activities, athletics, and personality. This is only one part of a long process of checks and balances to admit a diverse class. Harvard argues that it looks at applicants as a whole, rather than only based on one criteria, such as personality, and that such a complex set of criteria does not discriminate against any applicants. Recently, one of Harvard’s attorneys, William F. Lee, told reporters that the admission of some donor’s children, or donor’s relatives on the dean’s list does not have any effect on Asian Americans and how they are evaluated for admission. Ultimately, Harvard maintains that it would be unable to achieve the highest levels of academia and diversity among students without weighing students’ race because the campus would become less diverse, or less academically excellent.

Going Forward

The Students for Fair Admissions do not intend to call any of the plaintiffs to the stand to share their grievances because they argue that the students have a right to remain anonymous for fear of harassment. As the trial progresses, various witnesses are expected to testify such the University’s dean, Rakesh Khurana, and Gilpin Faust, who recently stepped down as President of Harvard University. In the final week of the trial, current and former Harvard students are also likely to testify in support of the college’s affirmative action program.


This case challenges whether colleges across the United States can consider the race of applicants. In the past, such considerations have been upheld. For example, in the case Fisher v. University of Texas, the United States Supreme Court upheld The University of Texas at Austin’s program that allowed the consideration of race as a factor in their admissions process. The Supreme Court followed precedent and held that the benefits of diversity were a compelling interest and justified the use of race as one of many factors considered when admitting students. However, the Supreme Court has also held that when it comes to race, “negative action,” such as racial quotas, is illegal. As the trial moves forward, it is likely that depending on Judge Burroughs’ ruling, the losing side could appeal, and this controversial case could make its way to the Supreme Court. If so, this trial brought against affirmative action in higher education will be only the beginning of a long and historical journey. Will the court follow precedent, or create a new standard?


Adam Harris, The Harvard Trial Doesn’t Matter, The Atlantic (Oct. 18, 2018).

Alia Wong & Isabel Fattal, The Complicated History of Affirmative Action: A Primer, The Atlantic (Aug. 2, 2017).

Collin Binkley, Harvard Emails Illuminate Power of Wealth in Admissions, Associated Press (Oct. 17, 2018).

Delano R. Franklin & Samuel W. Zwickel, In Admissions, Harvard Favors Those Who Fund It, Internal Emails Show, The Harvard Crimson (Oct. 17, 2018).

Nate Raymond, Harvard Admissions Bias Case Can Proceed to Trial: U.S. Judge, Reuters (Sept. 28, 2018, 3:44 PM).

Patricia Hurtado & Janelle Lawrence, The Harvard Trial: What We Learned This Week and What’s Ahead, Bloomberg (Oct. 20, 2018, 12:33PM).

New York District Attorneys File Lawsuit to Block New Prosecutorial Watchdog Committee

Written by Emily Green


District Attorneys in New York state have banded together against a bill that would create a new oversight body intended to fight prosecutorial misconduct. The group of prosecutors have filed a lawsuit against Governor Andrew Cuomo to block the new legislation saying that it is “riddled with fatal constitutional defects.”

The Bill

Upstate Republican State Senator John A. DeFrancisco sponsored the bill, which would create a Commission on Prosecutorial Conduct. Many criminal justice reform advocates support the bill, stating that it would help prevent wrongful convictions and would hold prosecutors accountable for their misconduct. Alternatively, opponents say it will have a chilling effect on prosecutors’ work and cause them to be unnecessarily defensive in carrying out their duties.

On August 21, 2018, Governor Cuomo signed the bill. Justifying his decision, Governor Cuomo explained that the commission would be a much-needed tool to root out any potential abuses of power, as well as keep the justice system fair for all New Yorkers. However, he did not sign with full approval. He agreed to sign with the caveat that the Legislature would amend the bill to address his concerns about its constitutionality during the next legislative session.

In effect, the bill would create a first-of-its-kind commission to investigate prosecutors who violate the standards of their office. There are none others like it in the nation and it would likely serve as a model for other states to follow suit.

Logistically, the bill proposes a watchdog commission made up of eleven members. These members will be prosecutors, defense attorneys, and judges. Six will be appointed by the Legislature, two will be appointed by the governor, and three will be appointed by the chief judge of the Court of Appeals, New York’s highest court.

The commission is charged with investigating any allegations of prosecutorial misconduct against any district attorneys in New York. It would have the resources to investigate any accusation of unethical, unprofessional, or unlawful action. Some of its power includes the ability to conduct hearings, compel witnesses to testify, issue subpoenas, and request records or materials for the investigation. Also, it would have broad power to punish prosecutors for misconduct, including through suspension and removal from office.

The Lawsuit

On Wednesday, October 17, 2018, prosecutors filed a 27-page complaint naming New York State, Governor Cuomo, state legislative leaders, and the commission as defendants in the suit. The plaintiffs are a group of District Attorneys from New York led by Albany County District Attorney David Soares.

Primarily, the plaintiffs argue that the bill makes significant changes by statute that can only be made by changing the state’s constitution. Therefore, it is unconstitutional, and the commission should not be formed.

However, the plaintiffs make arguments beyond constitutional issues, saying that the bill will practically hurt their job performance. They express concern that their independence will be threatened and that they will be hindered from carrying out their duties. Also, they predict that the interference in their work will breed more public corruption and distrust of public officials.

Central to the suit are several claims that the commission violates both the New York State Constitution and United States Constitution. First, the plaintiffs argue that the Legislature would be meddling in the affairs of district attorneys, who are elected executive-branch officials, therefore violating the doctrine of separation of powers. Additionally, they point out that there were no standards put forward for how the commission would determine who can and cannot be investigated. This violates the rights of the prosecutors under the Constitution’s Due Process and Equal Protection clauses. Finally, it would impermissibly expand the powers of the Court of Appeals. The New York Constitution limits the duties of judges to functions that are “reasonably incidental” to the fulfillment of judicial duties. This suit argues that judges sitting on this commission would go beyond “reasonably incidental duties” and therefore be acting unconstitutionally.

Governor Cuomo recognized some of these shortcomings when he signed the bill. He noted that there could be issues with separation of powers and the limited role of the judiciary. However, his office showed the most concern over the fact that the commission’s findings would be sent to the governor and available to the public. This could open the door for people to meddle in criminal cases and even active investigations. The concern is that anyone intent on disrupting a case can abuse the commission by forcing public disclosure of a prosecutor’s files.

The Bill’s Progress

After the lawsuit was filed, Governor Cuomo’s counsel outlined some major changes that will be made to the bill. One major change is a shift in the selection process of the eleven members of the commission. The governor and the legislature will each select four members, and the judiciary would still pick three, but its appointees must be retired judges.

Another significant change is that the commission’s findings will be issued through the appellate courts, not the Court of Appeals. This shift is an effort to limit the power gained by the Court of Appeals.

Finally, the amended bill made an important change regarding the timing of investigations into prosecutorial misconduct. The bill will prevent the commission from investigating District Attorneys during current investigations or ongoing cases where no charges have been filed.

The amended bill is set to take effect in January, but its future is uncertain pending the outcome of this lawsuit.



Amanda Ottaway & Adam Klasfeld, NY Prosecutors Sue to Stop Misconduct Watchdog, Courthouse News Service (October 17, 2018).

Carl Campanile, Lawyers sue Cuomo over law that probes prosecutor misconduct, New York Post (October 17, 2018)

Corinne Ramey, In Lawsuit, New York State Prosecutors Call Oversight Commission Unconstitutional, Wall Street Journal (October 17, 2018).

David Klepper, Capitol Watch: Local Prosecutors Sue Over Misconduct Panel, U.S. News (October 20, 2018).

Jesse McKinley, A New Panel Can Investigate Prosecutors. They Plan to Sue to Block It., New York Times (August 23, 2018).

Jonathan Bandler, NY Attorney General questions constitutionality of oversight commission for prosecutors, Lohud (August 14, 2018).

Ryan Boysen, NY Das Sue Cuomo Over Prosecutorial Misconduct Law, Law 360 (October 18, 2018).

Photo courtesy of Utah Bar Association.

How the Unexplained Disappearance of a Saudi Journalist in Turkey Will Test U.S. Foreign Policy

Written by Chris Billups


On October 2, 2018, a Saudi journalist entered the Saudi Arabian consulate in Istanbul, Turkey, but he has been missing since that day. Jamal Khashoggi’s disappearance remains unexplained, but as investigations continue, it appears increasingly likely that the notable Saudi journalist met a far more tragic end. At this time, it cannot be confirmed whether Khashoggi was kidnapped, tortured, or executed inside the Saudi embassy, but as each day passes and Khashoggi remains missing, those theories grow more plausible. As the world seeks answers about the mysterious disappearance, world leaders face difficult legal and diplomatic decisions.


Jamal Khashoggi, 59, was more than a prominent Saudi journalist. He also served as a former adviser to top Saudi officials earlier in his career before becoming a journalist. In his column, Khashoggi praised Crown Prince Mohammed bin Salman’s reforms which permitted women to drive and enter the workforce. However, he also frequently criticized bin Salman’s restrictions on freedom of expression by drawing attention to the imprisonment of intellectuals and journalists which became commonplace. Fearing retaliation for his writing, Khashoggi has lived in self-imposed exile in Washington, D.C. for the last year, where he continued to criticize bin Salman in a Washington Post column.

At 1 p.m. on October 2, 2018, Khashoggi, a Saudi citizen, entered the Saudi consulate in Istanbul to obtain documents to marry his Turkish fiancé, Hatice Cengiz. Prior to entering the consulate, Khashoggi gave her two cell phones, instructing her to call an adviser of Turkish President Erdogan if he did not emerge. The meeting was not expected to take more than an hour, but Cengiz waited for Khashoggi outside the embassy for ten hours. He never returned.

What We Know So Far

At this time, the only verified fact is that Khashoggi entered the Saudi embassy and has not yet emerged.

However, Turkish officials have concluded that he was murdered, and claim to possess recordings proving that Khashoggi was brutally tortured before being killed and dismembered with a bone saw inside the Saudi consulate. The Turkish government has also alleged that a team of fifteen Saudi agents was flown to Istanbul to perform the killing. They claim there is security camera footage of the team arriving in Istanbul, visiting the consulate an hour before Khashoggi, and then leaving the country the same day. Under long-standing international law, Turkish authorities were not permitted to investigate the consulate without Saudi permission. Upon receiving that permission, Turkish officials claim to have retrieved fingerprints belonging to several of the alleged killers and other “important samples.”

Saudi officials, including Crown Prince Mohammed bin Salman, have vehemently denied the accusations and insist that Khashoggi left the consulate shortly after he arrived. However, they have not produced evidence proving that Khashoggi ever exited the consulate.

U.S. Involvement

In the days following Khashoggi’s disappearance, his fiancé wrote a letter to President Donald J. Trump imploring him to investigate. At the time this is being written, President Trump has refrained from accusing Saudi Arabia of any wrongdoing because concrete evidence has not yet been released verifying Khashoggi’s fate. But as details have emerged from Turkish authorities, U.S. lawmakers have called for action following Saudi Arabia’s most recent attempt to silence such a prominent dissident. As a result, a bipartisan group of 22 U.S. Senators invoked the Global Magnitsky Act of 2016, triggering a human rights probe into the case of Khashoggi’s disappearance.

The Global Magnitsky Act does not require the Trump Administration to levy sanction against Saudi Arabia even if they are found responsible for the disappearance of Khashoggi. However, the Act does require the Administration to decide within four months whether to impose financial or travel-related sanctions against the individuals responsible. Ultimately, the power granted to the President under this Act is discretionary. President Trump has the authority to levy sanctions against any foreign person responsible for, complicit in, or otherwise shown to have directly or indirectly engaged in “serious human rights abuse.” The sanctions may be enforced against government officials or any individuals acting on their behalf if shown to be directly or indirectly engaged in serious human rights abuse. Under this Act, President Trump has the authority to levy individual financial and travel-related sanctions against Crown Prince bin Salam. Implementing sanctions of that magnitude on Saudi officials would undoubtedly strain relations with the powerful and prosperous ally which have been revitalized under President Trump.

Saudi Arabia’s inability to provide concrete evidence proving Khashoggi exited the consulate threatens Saudi Arabia’s reputation throughout the international community. International leaders from the United Kingdom, France, Germany, and Russia have voiced their concern about the allegations and implore Turkey and Saudi Arabia to conduct credible investigations uncovering the truth. Like President Trump, international leaders of these countries are hesitant to condemn the Saudi government until credible investigations have been conducted. To ensure credible investigations, several human rights organizations have urged Turkey to request a timely and transparent United Nations investigation to prevent political biases from affecting the investigations.

Responsibility for Khashoggi’s disappearance would be a stain on a nation that has otherwise appeared to attempt reform, perhaps illustrating some truth to Khashoggi’s criticisms.


The Global Magnitsky Act was enacted to investigate and impose sanctions upon individuals who commit serious human rights violations. By invoking the Act in this investigation, Congress has given President Trump four months to decide whether to impose sanctions if foul-play occurred. As facts are uncovered in the coming weeks, President Trump’s foreign policy will be in the international spotlight.



Anna Edgerton, Bipartisan Senate Group Forces U.S. Probe of Saudi Journalist’s Disappearance, TIME, (Oct. 11, 2018).

Deirde Sesgreen & Kim Hjelmgaard, What we know (and don’t) about missing Saudi journalist Jamal Khashoggi, USA Today, (Oct. 11, 2018).

Executive Order No. 13,818, 82 Fed. Reg. 60,839, 60,839–60,840 (Dec. 20, 2017).

Jamal Khashoggi case: All the latest updates, AL JAZEERA (last updated Oct. 14, 2018).

Jordan Tama, What is the Global Magnitsky Act, and why are U.S. senators invoking this on Saudi Arabia, WASH. POST, (Oct. 12, 2018).

Ola Salem, What is the Magnitsky Act? How does it apply to Khashoggi’s case?, AL JAZEERA, (Oct. 11, 2018).

Orhan Coskun, Sarah Dadouch, & Stephen Kalin, An Apple Watch, hired jet, mystery vehicle could provide clues in the search for missing Saudi journalist Jamal Khashoggi, BUSINESS INSIDER, (Oct. 10, 2018).

Rob Bershinski, An Explainer: Senate’s Letter on Khashoggi and the Global Magnitsky Act, JUST SECURITY, (Oct. 12, 2018).

Photo courtesy of CNBC.

Chicago Jury Convicted Jason Van Dyke of Second-Degree Murder: Could it be Overturned on Improper Venue Grounds?

written by Amy N. Walendziak


On October 5, 2018, a Chicago jury convicted former police officer Jason Van Dyke of second-degree murder for the fatal shooting of Laquan McDonald in 2014. However, the legal battle surrounding McDonald’s death is far from over, as Van Dyke’s lawyers intend to appeal his conviction. The issue of venue is likely to be appealed in this case.


On October 20, 2014, police officers received a report that someone with a knife was breaking into cars in a parking lot near South Pulaski Road and 41st Street in Chicago, Illinois. Officers pursued 17-year-old Laquan McDonald, who was seen in the location. McDonald allegedly refused to stop when officers ordered him to do so. Officer Van Dyke arrived on the scene, and, within six seconds of his arrival, repeatedly shot McDonald, continuing to shoot after he fell to the ground. Autopsy reports revealed that McDonald was shot sixteen times.

On November 24, 2015, just over a year after the shooting, Van Dyke was charged with first degree murder for killing McDonald in Cook County. On August 3, 2018, Van Dyke’s defense attorney moved for the trial to be held outside of Cook County, arguing that Van Dyke would be unlikely to receive a fair trial because of intense publicity that had surrounded the case. He presented the results of a study by a defense expert indicating that a majority of those polled believed Van Dyke was guilty. The judge delayed ruling on the motion until after jury selection.

The trial took place over four weeks, with jury selection beginning on September 10, 2018. Over the course of two and a half days, 54 potential jurors were questioned. Testimony began on September 17. The prosecution presented its case over four days, and the defense presented its case over five days. Closing arguments took place on October 4, and the jury deliberated from October 4 to October 5. On October 5, the jury returned a verdict, finding Van Dyke guilty of second-degree murder and sixteen counts of aggravated battery with a firearm, and not guilty of official misconduct.

Van Dyke is scheduled to return to court on October 31 for a hearing, during which his attorneys will file post-trial motions and the date for his sentencing will be set. His attorneys have indicated that they intend to appeal his convictions. Given the pre-trial discussions of venue, it is likely that Van Dyke’s attorneys will appeal the judge’s ruling on venue.

Venue for Criminal Trials

In Illinois, criminal prosecutions take place in the county where the crime was committed. A defendant may move to change the venue if “there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.” On appeal, a court’s decision to deny a motion for a change of venue will be upheld unless there is an abuse of discretion. When making this determination, appellate courts determine whether the defendant received a “fair and impartial trial” despite any potential for prejudice.

Illinois appellate courts consider many factors when determining whether a defendant faced undue prejudice in a particular county. These factors include the pretrial publicity, specifically the amount of publicity surrounding the case, the time that passed between pre-trial publicity and the start of trial, and the inflammatory nature of any publicity. Given the nature of today’s media, it is difficult to find jurors that have never heard of high-profile cases. It is important to consider other factors in addition to publicity when determining if the defendant received a fair trial.

Appellate courts will also review the selected jurors and the nature of the jury selection. A conviction is unlikely to be reversed based on venue if the jurors unequivocally indicated that they would remain unbiased despite any prior knowledge of the case. Illinois courts have also considered whether the defendant used all of his peremptory challenges. In a similar case involving a murder charge, the court upheld a conviction because the defendant did not exhaust his peremptory challenges.

Venue in this Case

Van Dyke’s lawyers argued that it was impossible for Van Dyke to receive a fair trial in Cook County. After the release of the officer camera video, the trial received a great deal of publicity both within the city, and throughout the country. Further, a defense expert polled potential jurors and found that 74% percent of people polled believe that Van Dyke was guilty.

Prosecutors for the state argued the defense’s study was skewed and offered its own study, indicating that 3.4 million people in the county could serve as unbiased jurors. Additionally, Van Dyke’s attorneys only used five of their peremptory challenges during jury selection, so there were no jurors selected after exhausting peremptory challenges.

The appellate court will have to perform a careful balancing test when determining whether Van Dyke received a fair trial. Given that the defense did not use all of its peremptory challenges, and that jurors indicated that they would remain impartial and listen to the trial evidence, the state will have a strong argument on appeal. However, the defense will likely argue that the type of publicity surrounding this trial is much more prejudicial than past publicity. Several Illinois cases upheld murder convictions in rural towns after local newspapers and media stations covered the trials. Van Dyke’s attorneys will likely distinguish the scope and nature of this case’s publicity from those earlier cases.


While it will likely be some time before an appellate court rules on Van Dyke’s appeal, the issue of venue will be a determining factor in whether Van Dyke’s conviction is upheld.


Andy Grimm, Here are the critical legal questions looming now for Officer Jason Van Dyke, Chi. Sun Times (October 5, 2018).

Judge Delays Ruling on Location of Laquan McDonald Murder Trial, CBS Chi. (August 3, 2018).

Laquan McDonald: A Timline of the Shooting, Fallout, And Officer Van Dyke’s Trial, CBS Chi., (September 4, 2018).

Mitch Smith, We Just Didn’t Buy It’: Jury Was Unswayed by Officer’s Story in Laquan McDonald Case, N.Y Times (October 6, 2018).

Mitch Smith, Timothy Williams, & Monica Davey, Jason Van Dyke Killed Laquan McDonald in 2014. Now Chicago Awaits a Verdict, N.Y. Times (October 4, 2018).

People v. Friday, 598 N.E.2d 302 (1992).

People v. Grover, 417 N.E.2d 1093 (1981).

What You Need to Know About the Jason Van Dyke Trial, NBC Chi. (October 4, 2018).

720 Ill. Comp. Stat. Ann. 5 / 1-6 (West 2013).

725 Ill. Comp. Stat. Ann. 5 / 114-6 (West 1982).

Sixth Circuit Court of Appeals Determines Clean Water Act Exempts Nonpoint-Source Pollutants

Written by Jenilyn M. Brhel


On September 24, 2018, the United States Court of Appeals for the Sixth Circuit reversed a District Court order that required the Tennessee Valley Authority to remove deposits of coal ash from one of its power plants, finding that the Clean Water Act does not apply to pollutants that reach protected waters via “hydrologically connected” groundwater channels.


In 1972, Congress passed the Clean Water Act, establishing protocols for the regulation of water-based pollutants in order to “restore and maintain. . . the Nation’s waters.”

Tennessee Valley Authority (“TVA”) is an electricity provider for approximately 565,000 households in the Nashville, Tennessee region. The company runs several coal-fired plants, one of which is located along a part of the Cumberland River called Old Hickory Lake, a reservoir and recreational destination for millions of people each year.

At its plants, TVA produces waste byproducts known as coal combustion residuals (“CCRs”). CCRs contain carcinogens such as arsenic. The CCRs are treated through a process known as “sluicing”, in which water is mixed with coal ash and allowed to settle in on-site ponds.

TVA treats its CCRs at a series of unlined ponds known as the Complex. The Complex is located on a karst terrain adjacent to the Cumberland River under which sinkholes, fissures and caves create conduits through which groundwater easily flows. These nooks and crannies allow CCRs from the Complex’s unlined ponds to leak into groundwater that flows through the karst terrain and into the Cumberland River.

Pursuant to effluent limitations and other protocols established by the CWA, the Environmental Protection Agency issued a permit to TVA that allows the company to discharge not all, but some of its “sluiced” coal combustion wastewater directly into the Cumberland River via a pipe called Outfall 001.


The plaintiffs, two conservation groups from Tennessee who enjoy Old Hickory Lake as a recreational destination, filed suit on April 14, 2015. They did not contend with TVA’s permitted CCR direct discharge through Outfall 001, but rather argued that the company was in violation of the CWA because of CCR leaks entering Old Hickory Lake via “hydrologically connected” groundwater channels originating from the Complex’s coal ash ponds.

The court rested its decision on its interpretation of the CWA’s distinction between point-source and nonpoint-source pollutants. The precise statutory language in question defined the discharge of a pollutant as “any addition of any pollutant to navigable waters from any point source.”

The plaintiffs argued that the meaning of the statute encompassed pollutants entering the waterway through “hydrogically connected” channels, arguing that because the pollutants entered the river through leaks in the lined ponds, the ponds should be considered a point source.

TVA argued that the meaning of point-source was limited to direct discharges, like those of Outfall 00, and that the statute did not mean to include the migration of pollutants through groundwater.

Ruling: Pollutants Must Have a Point-Source

The District Court for the Middle District of Tennessee found for the plaintiffs and ordered TVA to excavate the coal ash in the Complex and remove it to a lined facility.

The Court of Appeals for the Sixth Circuit reversed the District Court’s decision, finding that a pollutant must be placed directly into a protected water through a specific and identifiable point source. The court focused on the language of the statute regarding “discernible, confined and concrete conveyance(s).” It found that groundwater does not constitute a nonpoint-source conveyance and that karst-related leaks did not violate the provisions of TVA’s permit. The Court further stated that any regulation of pollutants through nonpoint-source conveyances does not come under the purview of the CWA.

Dissent Finds Distinction Arbitrary

The dissent argued that the law could be easily circumvented as defined by the majority. The contention is that if the statute of the language meant that pollutants must come from a direct point source, then companies could circumvent the law simply by arbitrarily moving their drainage pipes a few feet away from the water so that they are not feeding “directly” into it.

Looking Ahead

While the Court ultimately recognized that the pollution presented a significant environmental issue, it opined that the Clean Water Act was not the proper tool to address the problem.

However, both the Fourth District and the Ninth District have ruled to the contrary in recent decisions, finding that an intermediary like groundwater does not necessarily defeat liability. These differences in opinion raise the question of whether a case like this might soon end up at the Supreme Court of the United States.


33 USCS § 1251.

Arsenic, Nat’l Inst. of Envtl. Health Scis. (last visited Sep. 30, 2018).

Coal Ash Basics, U.S. Envtl. Prot. Agency (last visited Sep. 30, 2018).

History of the Clean Water Act, U.S. Envtl. Prot. Agency  (last visited Sep. 30, 2018).

Kenneth Hall, Federal Appeals Court Overturns Tennessee Coal Ash Cleanup Order, JURIST,  (last visited Sep. 30, 2018).

Old Hickory Lake, US Army Corps of Eng’rs,  (last visited Sep. 30, 2018).

Tenn. Clean Water Network v. TVA, No. 17-6155, 2018 U.S. App. LEXIS 27237 (6th Cir. Sep. 24, 2018).

Photo courtesy of Southern Environmental Law Center.

The Power of the First Amendment: District Judge Declares California’s Restrictions on Gun Advertisements Unconstitutional

Written by Collin M. Carr


The California Penal Code states that “[n]o handgun or imitation handgun, or placard advertising the sale or transfer” of handguns “shall be displayed in any part of the premises where it can readily be seen from the outside.” On September 11, 2018, a federal district judge for the Eastern District of California found this statute constitutionally problematic under the First Amendment and prohibited California from enforcing it in a decision that underscores how the law prioritizes freedom of expression over other policy-based concerns.


Between 2010 and 2015, the California Department of Justice issued citations to various gun shop owners for violating § 26820 of the California Penal Code by displaying images depicting firearms on the exterior of their businesses. Aside from issuing citations, the state officials also instructed the owners to remove the prohibited content. These materials included a metal sign outlined as a revolver, a logo shaped as a pistol, and vinyl window decals depicting rifles. While the nature of the materials differed, they all shared one common, prohibited feature: they communicated to the public that the store sold firearms.

The First Amendment Battle

Arguing that the state law infringed on their freedom of speech under the First Amendment, the gun shop owners filed a lawsuit in federal court seeking a court order prohibiting the state from enforcing the law. To determine whether the law in fact infringed on the owners’ First Amendment rights, Judge Troy Nunley conducted the four-part test used to evaluate restrictions on commercial speech.

This test first required the court to determine whether the images involved misleading speech, or speech advertising some form of “unlawful activity.” The court easily found that the images did not constitute a problematic form of commercial speech because the licensed selling and purchasing of firearms constitutes lawful activity, and the images did not create any misleading impression about the business conducted by the gun shops. Second, the court ascertained whether the government possessed a “substantial” interest in regulating the commercial speech. Again, the court easily found that the government imposed the law to serve the weighty interests of reducing gun-related crime and suicide.

The third prong, however, created the biggest area of disagreement and is where the court focused most of its attention. This prong requires the regulation to “directly” or “materially” further the government’s substantial interest. California reasoned that individuals who commit crime and suicide are more likely to possess “impulsive personality traits.” As such, the large images of firearms target people with impulsive personality traits by inducing them into purchasing weapons. The regulation, California asserted, therefore furthered its substantial interest in reducing crime and suicide rates by preventing such individuals from seeing these images and acting on such impulses.

This argument failed to persuade the court. It pointed to the argument’s false assumption that people who are at risk of impulsively purchasing items are also at risk of impulsively committing suicide or crime. The court held that, absent evidence establishing a direct link between the two forms of impulsive behavior, the regulation failed to materially further the government’s interests.

Although the regulation failed to satisfy the third prong of the test, the court proceeded to conduct the legal analysis for the final element, which requires the regulation to impose the least intrusive restrictions “necessary to serve” the government’s interests. The court held that § 26820 failed here as well, since California possesses various other regulations and methods for reducing crime and suicide without infringing on commercial speech. Given these considerations, the court held that § 26820 violated the First Amendment and granted the gun owners the injunctive relief they sought.

The Unwavering Influence of the First Amendment

While the precise boundaries of the First Amendment’s free speech protections remain unclear and are always subject to change, this case makes clear that the principles underlying the amendment remain a potent force against legislation that interferes with the free exercise of speech. Judge Nunley’s characterization of the regulation as a “highly paternalistic” piece of legislation is a testament to the power the First Amendment wields across legal and political ideologies, even in an era where the broad scope of the freedom of expression is increasingly questioned.


Bob Egelko, Federal Judge Nominee Troy Nunley Works His Way Up, SFGate (Jan. 2, 2013).

Cal. Penal Code § 26820 (Deering 2018).

Christopher Hsu, Federal Judge Rule Against Gun Ad Law, Jurist (Sept. 13, 2018).

Tracy Rifle & Pistol LLC v. Harris, 2018 U.S. Dist. LEXIS 154926 (E.D. Cal. Sept. 11, 2018).

Veronica Stracqualursi, Obama Calls for ‘Common Sense Gun Safety Laws’ after Florida Shooting, CNN (Feb. 15, 2018).

Photo courtesy of KPCC.