Category Archives: Court Opinions

Docket-based research needed to find “submerged precedent”

“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:

This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

— Joe

UELMA adoption does not correlate to barrier free access says Glassmeyer report

Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:

This report presents findings from a survey of state level primary legal information.   Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions).  This survey was done with the goal of reviewing the free and open status of this legal information.

Findings indicate that there exists at least 14 barriers to accessing legal information.  These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information.   At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources.  Current collections allow for citation retrieval and some basic keyword searching.  No state allows for federated searching of legal information collections.   The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon.   There is also a worrisome lack of archival material maintained by states.  Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices.  On a scale of 0 – 24, the highest score achieved was 18.  The lowest was 8 and the median was 14.  These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.

— Joe

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

Supreme Court Action: Habeas Corpus and Apply the Federal Arbitration Act to State Proceedings

The Supreme Court issued two opinions this morning.  The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire.  That case is White v. Wheeler (14-1372).  Wheeler was convicted of two murders and sentenced to death in Kentucky.  One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth.  The opinion describes these statements:

In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.

The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion.  The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal.  Wheeler filed a habeas corpus petition in federal court.  The District Court dismissed but the Sixth Circuit reversed and granted the petition.

The Supreme Court reversed.  It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court.  The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition.  The Court issued the opinion per curiam.  There were no dissents.

The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law.  Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back.  That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.

The present case, DIRECTV, INC. v.  Imburgia (14-462), concerns a variation of the Concepcion holding.  DIRECTV was sued in state court by individuals believing early termination fees violated California law.  The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration.  There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void.  The California trial court denied a request to send the matter to binding arbitration.  The California Court of Appeals agreed citing Discover Bank.

The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law.  The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions.   The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank.  The Court made it pretty clear that there was no way of getting around the Concepcion ruling.  Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan.  Justice Thomas filed a dissenting opinion.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor.  Justice Thomas believes that the FAA does not apply to proceedings in state court.  Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters.  He expresses similar views as to Justice Thomas but with a little more depth.

Mark

Supreme Court Action: Convening Three-Judge Panels in Gerrymandering Cases

The Supreme Court issued one opinion this morning.  The case is Shapiro v. McManus (14-990).  Petitioners in this case challenged the constitutionality of Maryland’s congressional apportionment map under First Amendment/Freedom of Associations grounds.  They gave the District Judge a petition to convene a three-judge court to hear the matter.  28 U.S.C. §2284(a) states that when this type of lawsuit is filed and the judge is presented with a petition a three-judge court to hear the matter, the judge shall notify the chief judge of the Circuit who shall designate two other judges to serve on the panel.

The statute contains one qualification: “unless he determines that three judges are not required.”  The District Judge in this case decided that three judges were not required as he did not believe any relief was available to the petitioners in that they were free to join with others to express a political opinion.  Rather than notifying the Chief Judge, he dismissed the case.  The Fourth Circuit affirmed in an unpublished opinion.

The Supreme Court reversed.  The Court stated that the statute is written in mandatory terms.  The only discretion the Judge has when presented with a petition for a three-judge panel is analyzing whether the parties properly belong in federal court, not whether the plaintiff’s case has any merit.  The petitioner’s claims clears the bar for jurisdiction.  The petitioner’s claims may or may not have merit, but they are entitled to a hearing before a three-judge court under the statute.  Justice Scalia delivered the opinion for a unanimous Court.

Mark

Supreme Court Action: Suits Against Foreign Entities and the FSIA

The Supreme Court issued one opinion this morning.  The case is OBB Personenverkehr v. Sachs (13-1067).   The case involves a gruesome and unfortunate accident that befell Sachs as she attempted to board a train in Innsbruck, Austria. She fell on the tracks and before she could recover a moving train crushed her legs necessitating the amputation of both above the knee.  The train was operated by OBB which the parties agree is an instrumentality of Austria.  Sachs sued OBB in the Northern District of California for her injuries and alleged that jurisdiction was proper under the commercial activities exception of the Foreign Sovereign Immunities Act.  One month before her accident she purchased a Eurail pass via the Internet from The Rail Pass Experts, a Massachusetts-based travel agent.  This was the only activity related to OBB that took place in the United States.

Sachs made five claims:

Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.

The District Court dismissed the case stating that her claims did not fall within the commercial exception located at 28 U.S.C. §1605(a)(2).  A divided panel of the Ninth Circuit affirmed.  A rehearing en banc reversed the divided panel and said the sale of the ticket fell within the exception.  The Supreme Court reversed concluding that the sale of the ticket in the United States was too remote from the elements of Sachs’ claims to fall within the exception.

The Court’s analysis turned on whether the commercial activity was directly related to injuries she claimed in her complaint.  The Court said there was nothing wrongful about the sale of the ticket that could be the basis of a suit that survives the FSIA.  Otherwise, the Court stated, many more suits could be filed against sovereigns using creative pleading.  The Court rejected other arguments as well as they were raised for the first time in the Supreme Court hearing.  Chief Justice Roberts delivered the opinion for a unanimous Court.

Mark

Supreme Court Action: Qualified Immunity When Deadly Force is Used By Officers During A Car Chase

The Supreme Court issued one opinion today.  The case, Mullenix v. Luna (14-1143), decided whether a Texas state trooper (Mullenix) was entitled to qualified immunity when he fired shots at a suspect’s car during a high speed chase, killing the suspect.  The Court’s restatement of the facts show that Israel Leija, Jr. resisted an attempt to arrest him and fled in his car.  Another officer, Sergeant Randy Baker, pursued Leija in a chase reaching speeds between 85 and 110 miles per hour.  Other officers joined the pursuit.  Leija called local police dispatchers twice and informed them that he was armed and would shoot officers if the chase was not called off.  This information was relayed to the pursuing officers along with information that Leija may be intoxicated.

Some officers set up road spikes at a location Leija was expected to pass.  Mullenix intended to set up spikes as well but decided he might disable the car by shooting at it.  He radioed his decision to his supervisor, Sergeant Byrd, who said to stand by and see if the spikes worked first.  Mullenix was joined by  Officer Shipman and they discussed Mullenix’ plan to shoot at the car.  Leija approached and Mullenix fired six shots.  Leija’s car hit the spikes and rolled over two and a half times.  Four of six shots Mullenix fired hit Leija in the upper body and killed him.  There was no evidence that any of the bullets hit any portion of the car that could have disabled it.

Leija’s family sued Mullenix on civil rights violations, specifically that Leija’s Fourth Amendment rights had been violated.  Mullenix filed a motion for summary judgment based on qualified immunity.  The district court denied the motion and the Fifth Circuit Court of Appeals affirmed the denial.  The Fifth Circuit withdrew its first opinion but substantially upheld the denial in a second opinion.

The Supreme Court reversed.  It stated the standard for applying qualified immunity is whether the conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The Court explained that lower courts should not apply the standard in a general sense and that the application is fact dependent.  The Court noted there were only two prior cases where it ruled on excessive/deadly force involving car chases.  In those two:

The Court has thus never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.

Further, lower court cases decided subsequently have not established that the use of force in situations similar to the present case is inappropriate.  The mere fact that other courts have found the level of force appropriate in more extreme cases does not render the use inappropriate here.

The Court issued the case as a per curiam opinion.  Justice Scalia concurred in the judgment.  Justice Sotomayor dissented.

Mark

 

“Free The Law:” Ravel and Harvard Law Team Up To Do Just That

There is so much to catch up on.  The recent news is that Ravel Law is teaming up with Harvard to scan significant portions of the primary law collection with the ultimate goal of placing the bulk online for use by the public.  The story in the New York Times mentions the fact that the librarians are cutting the books apart so the pages could go through high speed scanners.  The implication here is that there is no turning back for the project. Here is another story from the Harvard Law School News.

The interesting part for me aside from having as much primary law on the web is that this is the first major scanning project announced since the Google Book decision from October 16th.  Most primary law is in the public domain so there shouldn’t be any question about the legality of scanning.  Nonetheless, that decision should comfort the project managers.  I wonder if the decision will be giving impetus to any other large scale digitizing projects.

Mark

It’s Only A Friday Fun If You Like The Result: Google Wins Again at Second Circuit Over The Book Scanning Project

The Second Circuit handed Google another victory in its battle with the Authors Guild, et al., by upholding the District Court’s determination that its book scanning project is fair use.  Here is the Court’s own summary of the decision from the end of the opinion:

In sum, we conclude that: (1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.

The Court relied on its decision in the HathiTrust case for declaring that Google’s scans were transformative.  The Court here noted that the libraries did not offer snippet view in local search in comparison to Google.  That wasn’t a problem, however, as Google’s snippets were no substitute for a copy of the book.  At best a research could determine whether the book would be useful in a research project.  That would not be a lost sale necessarily if the researcher rejected using the book in a personal project.

I’m still digesting the opinion and may have more to say about this later.  I’ll refer readers to c copy of the opinion on Google Drive as supplied by the Chronicle of Higher Education.  I’ll also point to a copy linked in a statement of disappointment in the ruling by the Authors Guild.  Note, however, that the Guild links ultimately to copy placed on Google Drive as well (oh the irony).  I would also draw your attention to the fact that the link from the Chronicle allows the reader to download the document.  The version from the Guild does not offer that option.  I’m guessing the Guild is hard-wired in that regard.

Mark

Google Fights France On The Right To Be Forgotten — Worldwide

Google was ordered by the Court of Justice for the European Union to delist individuals from search results under a “right to be forgotten.”  Other search engines had to comply with the order as well.  Certainly in the digital world information can be copied and stored anywhere.  Even deleted pages can be resurrected by viewing a cached copy when available.  The Wayback Machine at the Internet Archive allows one to search 456 billion preserved web pages over time.  Many websites, not unlike this one, may repost a document or other information thus populating a web of hits and misses.  I’m always surprised at what I find when I Google myself no matter how hard I hide from social media.

Google has reported that it has processed a quarter of a million requests to be forgotten comprising links to one million pages.  So far, so good.  France’s data regulators have ordered Google to delete links on a worldwide basis rather than limiting them to Europe.  Google’s response was “non.”  The company states that doing this would encourage other governments from enforcing similar “rights” which can be manipulated into censorship.  I can understand that.  Hostile elements in and out of government can use this kind of mechanism to marginalize opposition by limiting its web presence.

This is going to becomes a bit of a mess as it will likely lead to more litigation in Europe.  I suspect Google may have to rethink some of its business practices there if it ultimately loses on a European court order that is essentially extra-territorial.  In that case, Europe essentially sets a world-wide standard which, I think, is a dangerous precedent.  Imagine a U.S. State, we’ll call it Texas, deciding what could and could not be taught about evolution in schools nationwide.  We’ll all have to see how this one turns out.

More information comes from a post in Google’s Europe Blog.

Mark

Apple Loses Appeal In Ebook Case

The Second Circuit Court of Appeals rejected Apple’s arguments on appeal and upheld Judge Denise Cote’s finding that Apple violated the antitrust laws:

Defendants Apple, Macmillan, and Simon & Schuster appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.), entered on September 5, 2013. After a bench trial, the district court concluded that Apple violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by orchestrating a conspiracy among five major publishing companies to raise the retail prices of digital books, known as “ebooks.” The court then issued an injunctive order, which, inter alia, prevents Apple from signing agreements with those five publishers that restrict its ability to set, alter, or reduce the price of ebooks, and requires Apple to apply the same terms and conditions to ebook applications sold on its devices as it does to other applications. We conclude that  the district court correctly decided that Apple orchestrated a conspiracy among the publishers to raise ebook prices, that the conspiracy unreasonably restrained trade in violation of § 1 of the Sherman Act, and that the injunction is properly calibrated to protect the public from future anticompetitive harms. In addition, we reject the argument that the portion of the injunctive order preventing Apple from agreeing to restrict its pricing authority modifies Macmillan and Simon & Schuster’s consent decrees or should be judicially estopped. Accordingly, the judgment of the district court is AFFIRMED.

The main opinion was accompanied by an opinion concurring in part and dissenting in part, and a dissenting opinion.  Here are the opinions:

US v Apple Opinion US v Apple C&D In Part US v Apple D Opinion

Mark

Supreme Court Action: Patents, Fourth Amendment, Excessive Force Claims, and the Takings Clause

The Supreme Court issued four opinions this morning.  I’m guessing the same-sex marriage case and the Obamacare case will be decided on June 29th, which appears to be the last day of the term.  Today’s cases, while not having the social impact, are interesting nonetheless.

The first case is Kimble v. Marvel Entertainment LLC (13-720).  Kimble entered into a contract with Marvel (the pre-Disney owned Marvel) where Marvel would buy Kimble’s patent on a Spiderman for a lump sum and a 3% royalty on each toy sold.  Sometime near the end of the 20-year patent term Marvel’s spidey sense began to tingle and the company discovered the case of Brulotte v. Thys Co., 379 U.S. 29 (1964 ).  That case held that a patent holder could not charge royalties once the patent had expired.  Marvel sued for and won a declaratory judgment that royalty payments would cease once the patent expired.  The Ninth Circuit affirmed.

The Supreme Court upheld Brulotte and affirmed the lower court decisions on the basis of stare decisis.  The Court said that relief from the rule rests with Congress and not the Court.  It also suggested that the royalty contract could be structured in other ways to spread the payments beyond the expiration of the patent.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Thomas.  The dissent argued that the Court made up the Brulotte rule when the case was decided (wrongly, in its view) and could just as easily get rid of it as there is nothing in the patent laws that direct that result.

The second case is Los Angeles v. Patel (13-1175).  The City of Los Angeles has an ordinance that requires hotel operators to record specific detailed information about their guests.  The ordinance also requires that the records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.”  A group of motel owners sued on the basis that the statute was facially unconstitutional under the Fourth Amendment as it afforded no opportunity to challenge the inspection beforehand.  The District Court held for the City ruling that the owners had no privacy interest in the records.  The Ninth Circuit affirmed but then reversed en banc.

The Court held that a facial challenge to the ordinance can be made.  Even though the “search” in this case is administrative, it is still unconstitutional as it does not allow pre-compliance review before a neutral party.  Justice Sotomayor delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a dissenting opinion and was joined by Justice Thomas.  The dissents argue essentially that the challenge should fail as the Court decides whether the application of a law is unconstitutional rather than the text of the law in and of itself.

The third case is Kingsley v. Hendrickson (13-6368).  Kingsley was a prisoner awaiting trial when he became uncooperative in his cell.  On one occasion he refused an order to leave his cell and was forcibly removed.  He was handcuffed and stunned with a Taser.  He also alleged officers slammed his head into a concrete bunk.  He filed a §1983 suit.  The trial court issued jury instructions calling for a subjective standard to decide liability.  The jury found for the officers.  The Seventh Circuit affirmed in a divided panel.

The Supreme Court reversed holding that the correct standard was an objective unreasonableness standard in deciding an excessive force claim.  The Court stated that it was consistent with precedent, it is the standard in the pattern jury instructions, officers are trained to a standard, and based on circumstances, the officers may be justified in their actions and given some form of immunity.  Justice Breyer delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a separate dissent. Justice Scalia argues that “any intentional application of force that is objectively unreasonable in degree is a use of excessive force that “amount[s] to punishment.””  Justice Alito would dismiss the appeal as other questions need to be answered in the case first.

The fourth case has been to the Court before on procedural issues over jurisdiction.  The Court today decides the substantive issue in the case of Horne v. Department of Agriculture (14-275).  The Agricultural Marketing Agreement Act of 1937 lets the Secretary of Agriculture create marketing orders to maintain stable markets.  Horne and his family grow raisins and acts as a handler for other growers by buying their crop and marketing them.  The marketing order establishes the Raisin Administrative Committee.  The Committee imposes a 47% reserve allowing that portion of the crop to be given to the government to sell in noncompetitive markets, give away, or otherwise dispose of.  Any profits after expenses are returned to the grower.

Horne refused to turn over raisins to the government.  He was fined the fair market value of the withheld crop and other civil penalties.  He ultimately sued the government alleging that the program violates the Takings Clause of the Fifth Amendment.  The Ninth Circuit ruled that this was not a per se taking as personal property is afforded less protection than real property.  That court also stated that the Hornes could avoid the problem by growing different crops.

The Supreme Court reversed. The Fifth Amendment applies equally to personal property as to real property, requiring just compensation from the government.  The history of the Fifth Amendment justifies this.  The Committee’s taking of the 47% of the crop is clearly a taking and the net profits are not just compensation.  The Hornes are not required to pay the fine and then seek its return in other proceedings.  Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justices Ginsburg, Breyer, and Kagan joined the opinion as to Parts I and II.  Justice Thomas filed a concurring opinion.  Justice Breyer filed an opinion concurring in part and dissenting in part and was joined by Justices Ginsburg and Kagan.  Justice Sotomayor filed a dissenting opinion.  Justice Breyer would remand the case to determine if any money was due to the Hornes after the accounting.  Justice Sotomayor argues that precedent relied on by the Court does not make the circumstances a per se taking.

Mark

Supreme Court Action: License Plates and a Host of Others

The Supreme Court issued six opinions yesterday.  The most controversial is the Texas specialty license plate case, Walker v. Texas Div., Sons of Confederate Veterans, Inc. (14-144).  The facts are straightforward.  The Sons of Confederate Veterans applied for a vanity plate that featured the organization and included a confederate flag.  A Google image search of [sons of confederate veterans license plate] will bring up ample amounts of results showing the design.  It is also appended to the end of the majority opinion.  Interestingly, it appears that other states have issued plates with the design.  Texas, however, said no to the confederate flag.  The SCV naturally sued.  The federal district court upheld the denial and the Fifth Circuit reversed.

The issue concerned whether plate design was government speech or private speech.  If it was the former, Texas had the right to control its own governmental message appearing on its license plates.  If it was private speech, the First Amendment would prohibit government from censoring the message.  The majority ruled that Texas had the right to refuse the design as it was characterized as government speech.  The Court based this holding mostly on the prior case of Pleasant Grove City v. Summum, 555 U. S. 460 (2009).  In Summum, the Court rejected a private organization’s attempt to place a religious monument in a city park where other privately erected monuments already existed on the basis that the government could control its own message.  The nature of the park did not turn it into a private forum.  The Court analogized the park setting with that of vanity license plates.

The Court’s opinion was delivered by Justice Breyer and he was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts, and Justices Scalia and Kennedy.  The dissent argues that the Summum case is distinguishable and that the majority passes off government speech with private speech.

The other cases involve subjecting the mentally handicapped to the death penalty, Brumfield v. Cain (13-1433, (the defendant has a right to prove he is mentally handicapped); introduction of statements made earlier by a 3-year old child about abuse does not violate the confrontation clause, Ohio v. Clark (13-1352); whether the state has to prove intent and knowledge when a defendant is charged with selling drug analogues appearing on schedules from the Controlled Substances Act (it does), McFadden v. United States (14-387); and whether a church can be fined for not removing temporary directional signs in time limits contained in its sign code (it can’t in that the applicable code was not content neutral), Reed v. Town of Gilbert (13-502).

Mark

Supreme Court Action: Recognition of A Foreign Sovereign and Executive Powers, and a Little Legal Research Lesson

The Supreme Court issued one opinion this morning.  That case, Zivotosky v. Kerry (13-628), resolves a long standing court battle on whether a U.S. passport issued to a citizen born in Jerusalem can state the country of birth as Israel.  The current administration, as well as every previous administration since the United States recognition of Israel in 1948, has declared that Jerusalem is not under the control of any one country.  The Foreign Affairs Manual requires that passports recording of birth location be consistent with administration policy.

Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 in 2002.  Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.”  Congress explicitly authorized passports to state the country of birth as Israel for those U.S. citizens born in Jerusalem.   Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 and his parents requested his country of birth be listed as Jerusalem.  Consular officials declined the request, setting up the present suit.

There is a long history of this case proceeding up and down the federal court system.  The Supreme Court issued a procedural opinion in 2012 (Zivotofsky v. Clinton) ruling essentially that the federal courts could decide the question.  Three years later the Court rules on the substantive issue, stating that the Act is unconstitutional.  The rationale for this is an analysis of constitutional language,  historical practice, and past precedent touching on presidential power to conduct foreign relations.  The Court acknowledges that Congress can pass legislation that can regulate passports in some circumstances.  Congress, cannot, however, pass legislation that affects the power of the President to recognize (or not) foreign sovereigns.  This Act falls into that latter category.

What struck me most about the opinion is the number of historical secondary sources cited by the Court.  It’s almost a lesson in legal research.  Some of the sources include:

  • Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986)
  •  2 M. Whiteman, Digest of International Law §1, p. 1 (1963)
  • 1 J. Moore, Digest of International Law §27, p. 73 (1906)
  • I. Brownlie, Principles of Public International Law 93 (7th ed. 2008) (Brownlie)
  • The Federalist No. 69, p. 420 (C. Rossiter ed. 1961)
  • E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853)
  • 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930)
  •  2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925)
  • 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833)

There are more.  I point this out as someone who has taught Advanced Legal Research, emphasizing that researching international and constitutional law issues requires attention to historical literature.  There is more to interpretation than the latest hornbooks.    The Court’s opinion today validates that.  The Clerks did a marvelous job in working on this case.  I’ll leave the impact of today’s decision to the commentators in the new.

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Breyer filed a concurring opinion.  Justice Thomas filed an opinion concurring in the judgment and dissenting in part.  That makes it 6-3.  Chief Justice Roberts filed a dissenting opinion and was joined by Justice Alito.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Alito.

Mark

Supreme Court Action: Limitations Period for Filing Claims Under the False Claims Act

The Supreme Court issued three opinions this morning.  I’m writing about one of them today because I’m suffering from the dreaded “first day back at work after a three day holiday blues;” that and an unexpected dental appointment this morning to fix a broken tooth.  The cases cover bankruptcy (Wellness Int’l Network, Ltd. v. Sharif (13-935)), patents (Commil USA, LLC v. Cisco Systems, Inc. (13-896)), and when qui tam suits under the Federal Claims Act (FCA) may or may not be barred by a limitations provision (Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter (12-1497)).

Carter was an employee of a government contractor who provided water purification services to the government in Iraq.  The contractor, Carter claims, billed the government for services that were either performed improperly or not performed at all.  The FCA has two provisions at issue here.  One is a “first-to-file” provision that bars subsequent suits that involve the same facts or incidents.  The other is the FCA’s statute of limitations provision requiring a qui tam action must be brought within six years of a violation or within three years of the date by which the United States should have known about a violation.  There is a 10 year limitation against suits in any event.

Carter brought suit within the time allowed but was dismissed in 2010 because there was a pending suit (Thorpe) in another court on the same issue.  The court dismissed Carter’s suit without prejudice.  Carter filed a second suit when Thorpe was dismissed for failure to prosecute.  That suit was also dismissed because Carter’s appeal of the first dismissal was pending.  Carter dismissed the appeal and filed a third suit.  The district court dismissed that third suit, this time with prejudice, on the grounds that two other cases, one in Texas and one in Maryland, had already been initiated on the same facts.  The district court also ruled that the Wartime Suspension of Limitations Act (WSLA), which suspends the Statute of Limitations for “any offense” involving fraud against the federal government, only applies to criminal cases and not Carter’s civil case.  Only one of Carter’s claims would survive the limitations clause

Carter appealed the dismissal and the Fourth Circuit held that the dismissal of the pending cases from Texas and Maryland removed the first-to-file impediment.  It also ruled that the WSLA applied to civil as well as criminal cases.  The contractors appealed to the U.S. Supreme Court.

The Court spent the bulk of the opinion on the applicability of the WSLA to Carter’s case and concluded that the language, structure, and history of the statute limited it to criminal cases.  The Court then resolved the question of whether Carter’s third complaint should be dismissed with prejudice given that at least one claim would survive.  The Court agreed with the Fourth Circuit that when previous cases are dismissed without resolution that the first-to-file bar ceases.

Mark

Supreme Court Action: The Rest of the Decisions from Last Monday

I never had a chance to write about the other cases the Supreme Court issued on Monday.  Here are short summaries of the points decided.  The case of Henderson v. United States (13-1487) presented the question as to whether a convicted felon could transfer his guns to a third party as §922(g) prevents a felon from possessing firearms.  Henderson wanted to give his guns to a friend.  The government opposed the idea.  The Supreme Court held that the statute does not prohibit the transfer provided the court below was satisfied that the transfer was not a sham.  Justice Kagan delivered the opinion for a unanimous Court.

Coleman v. Tollefson (13-1333) concerned the ability of prisoners to file lawsuits in forma pauperis.  The relevant statute limits a court to grant the status to a prisoner who has filed three prior actions that were ultimately dismissed as frivolous. , malicious, or fails to state a claim upon which relief may be granted.  Coleman filed three suits that were dismissed as frivolous.  He filed four more suits while the third dismissal was on appeal.  The lower courts denied him in forma pauperis status.  Coleman argued that the case on appeal shouldn’t count.  The Supreme Court disagreed stating essentially that the statute governs the action of a single court rather than as a sequence of events.  Justice Breyer delivered the opinion for a unanimous court.

The case of Comptroller of Treasury of MD v. Wynne (13-485) presented the issue of how states can account for tax credits against taxes paid to other states.  Maryland allowed tax credits for tax payments made to other states against its state income tax but not for a county tax which the state also levied.  The state issued a deficiency notice against Wynne when he claimed credits against both.  The lower Maryland courts held the tax scheme violated the dormant Commerce Clause as it burdened interstate commerce.  The state’s tax scheme did not pass the internal consistency test which assumes that every state has the same tax structure.  If every state adopted Maryland’s structure, interstate commerce would be taxed higher than intrastate commerce.  The words “dormant Commerce Clause” suggest all kinds of internal interpretive disputes in the Court which is reflected in the vote.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas as to Parts I and II.  Justice Thomas filed a dissenting opinion and was joined by Justice Scalia except as to the first paragraph.  Justice Ginsburg filed a dissenting opinion and was joined by Justices Scalia and Kagan.

The next case is Tibbles v. Edison Int’l (13-550).  This case involves a breach of fiduciary duty claim under ERISA, but the real issue is whether the limitation period for filing a claim (six years) barred the suit.  The claim is that plan trustees added mutual funds to the plan in 1999 and 2002 when there were materially identical plans available at a lower cost.  The case was filed more than six years after the funds were added to the plan.  The Court held that trustees have an ongoing duty to remove imprudent trust investments.  As long as the claim alleges a violation of that ongoing duty, the claim is timely.  Justice Breyer delivered the opinion for a unanimous Court.

The last case from Monday is Harris v. Viegelahn (14-400).  There are two options for filing individual bankruptcy, Chapters 7 and 13.  The difference is that under Chapter 7 a debtor’s assets are transferred to a bankruptcy estate and promptly liquidated for distribution to creditors.  This does not include wages earned after the petition is filed.  Chapter 13 allows a debtor to retain assets and develop a plan to pay off creditors from future wages, among other assets.  Harris owed money to multiple creditors and some $3,700 to Chase Bank as arears on his home mortgage.  Chase filed a Chapter 13 petition.  Harris was obligated under the plan to resume mortgage payments of $530 per month which were withheld from his wages and given to Viegelahn, the bankruptcy trustee.  Harris fell behind and Chase foreclosed.  Viegelahn still received the $530 per month without making any payments to Chase.  Harris converted his Chapter 13 plan to Chapter 7 a year later.  Viegelahn then distributed money to creditors including funds from Harris’ wages.  Harris petitioned to get that money back.  The Fifth Circuit held that Harris was not entitled to a refund.  The Supreme Court reversed, holding that bankruptcy law limits the Chapter 7 estate to property on hand at the time of the initial filing.  Justice Ginsburg delivered the opinion for a unanimous Court.

Mark

Google Scholar Case Law Evolves

I came across an interesting feature in the case law portion of Google Scholar.  A non-law student asked me for help in locating three cases that she couldn’t find through LexisNexis Academic.  She explained that she also tried using Google Scholar.  I expanded the information about each by doing a few web searches as well as to verify the accuracy of the case names she gave me.  Two of the three were ultimately available through LNA.  The third was not.

I searched Scholar with the information I had located about the case and found an opinion with the right caption.  I opened the document and noticed that the docket number was a hyperlink.  I clicked on it and discovered that there were actually seven opinions issued in the case, at least at the federal District Court level.  I remember back when Google Scholar added the case law database that the engineers in charge said it would be easy to create a citator but that their contract with the “unnamed large legal publisher” that licensed the text prohibited that feature.  Somehow that didn’t stop Google from adding two features that form a quasi-citator.

One is the “How cited” link in the upper left corner of the page containing the full text of an opinion.  That gives links to other citing cases with snippets of text from those cases.  There is another option to see all cases that cite the source case.  The second feature is a series of links on the same page under the heading “Related documents.”  This is where links to the same case at a different appellate level may be found.  By hyperlinking the docket numbers, Google can now offer a quasi-history along with its quasi-citator.  The only thing missing and presumably barred by contract are the symbols (emojis?) identifying the quality of the citation.

The main feature of Google Scholar’s case law, of course, is finding cases related to a problem through keyword search.  The results were hit or miss back in 2009 when the database went public.  The case list showed relevant decisions but it seemed as if something was missing.  The trust factor wasn’t there.  I mention this because I tested Scholar last fall when I created scripts for teaching features and strategies available using Lexis Advance, WestlawNext, and Bloomberg Law.

The problem was set in New York State.  Essentially, an individual sued a landowner for injuries sustained while riding an all-terrain vehicle (ATV) on the owner’s property.  The searches were from the perspective of the owner under the theory of assumption of the risk.  I liked the problem because there is a New York statute that specifically exempts liability for injuries sustained in most but not all unauthorized access circumstances.  It gave the opportunity to show research elements such as case results, links to statutes, annotations under statutes, and how to find related headnotes.  All three databases brought up the same leading cases and straightforward navigation to the related research types on each system.

I tested the same keywords in Scholar and sure enough, it gave results featuring all of the same leading cases on the first page of citations as I had found in LA, WN, and BL.  Essentially, Google’s algorithm has improved tremendously since those early days.  Google is hardly a substitute for any of the commercial databases as it does not have the value-added features such as secondary sources and others.  At the same time, anyone searching Scholar’s case law database can do so with a good amount of confidence in my opinion.

Incidentally, anyone wishing to see the scripts I designed should contact me for copies.

Mark

Supreme Court Action: Qualified Immunity with a little ADA on the Side

It’s getting to that time of the year when the Supreme Court starts to issue opinions in droves.  The Court issued six opinions today.  The opinion that will likely generate the most news is City and County of San Francisco v. Sheehan (13-1412).  That case concerned two questions:  whether the Americans With Disabilities Act (ADA) applied to police arresting an individual suffering from a mental illness, and whether the officers involved in the incident were entitled to qualified immunity under the circumstances.

Here is a summary of the relevant facts.  More detail is in the opinion.  Theresa Sheehan lived in a group home for those with mental illnesses.  Her social worker in the building, Heath Hodge, attempted a well-being check.  He knocked on Sheehan’s door with no response from  her.  He then used his key to enter Sheehan’s room.  Sheehan sprung from her bed and yelled for Hodge to get out and threatening him with a knife.  Hodge left and called police for assistance.  Officers Holder and Reynolds responded.  They knocked on Sheehan’s door and announced themselves as police officers.  They received no response and proceeded to use Hodge’s key to enter the room.  Sheehan announced rather aggressively that she had a knife and threatened to kill both officers.  They retreated and called for backup.

Both officers re-entered the room rather than waiting for backup to arrive.  The Court notes that “they did not pause to consider whether Sheehan’s disability should be accommodated.”  Sheehan again threatened violence.  Officer Reynolds pepper-sprayed Sheehan and that was ineffective.  Officer Reynolds shot Sheehan twice.  A third officer from backup kicked the knife out of Sheehan’s hand.

Sheehan ultimately sued San Francisco under the ADA for not accommodating her disability.  She also sued Holder and Reynolds in their personal capacities for violating her Fourth Amendment rights.  The District Court held that the ADA did not apply to police in these circumstances and that Sheehan’s Fourth Amendment rights were not violated.  The Ninth Circuit vacated in part holding that it was up to a jury to determined whether the police should have accommodated Sheehan.  A jury could have also determined whether officers needlessly provoked Sheehan through the second confrontation.  As the Court stated:

The panel further found that it was clearly established that an officer cannot “forcibly enter the home of an armed, mentally ill subject who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry.”

San Francisco appealed to the Supreme Court.  The Court dismissed the grant of certiorari as to the question of whether the ADA “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”  None of the parties actually argued the point with all assuming that the ADA did apply. San Francisco argued instead that Sheehan did not qualify for an accommodation under ADA regulations.  The Court was not happy with the change in strategy compared to the question it certified.

The second question about qualified immunity was decided in favor of the police, though that decision was not without controversy.  More on that in a moment.  The Court held that the police in this case did not violate a statutory or constitutional right clearly established at the time of the challenged conduct.  The Court agreed with the Ninth Circuit in the two entries did not violate any clearly established right or that the second entry would have violated any constitutional rights had Sheehan not been disabled.  The use of force under the circumstances was also reasonable.  This, however, did not end the issue:

The real question, then, is whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability. Here we come to another problem. San Francisco, whose attorneys represent Reynolds and Holder, devotes scant briefing to this question. Instead, San Francisco argues almost exclusively that even if it is assumed that there was a Fourth Amendment violation, the right was not clearly established. This Court, of course, could decide the constitutional question anyway. See Pearson v. Callahan, 555 U. S. 223, 242 (2009) (recognizing discretion). But because this question has not been adequately briefed, we decline to do so. See id., at 239. Rather, we simply decide whether the officers’ failure to accommodate Sheehan’s illness violated clearly established law. It did not.

The Court analyzed the precedent used by the Ninth Circuit and concluded that it did not justify a remand to a jury on the question of immunity.

Justice Scalia wrote an opinion concurring in part and dissenting in part.  He agreed that the Court was right to dismiss the certiorari on the first question as improvidently granted.  He stated that on that basis the Court should not have addressed the second question.  He stated:

[H]owever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction.

Take that for what it is.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, Ginsburg, and Sotomayor.  Justice Scalia filed the aforementioned  opinion concurring in part and dissenting in part and was joined by Justice Kagan.  Justice Breyer did not participate in the case.

I’ll write about the other cases tomorrow, and if time permits, some interesting features I discovered in Google Scholar’s  case law database.

Mark

Short Takes On The News: “Exceptional” Lawsuits, Denial of a Law License, and Law School Accreditation

Boy, I haven’t done one of these in quite some time.  Wandering down the Internet news can bring up some mighty unusual items where the law gets involved.  Take, for example, this story in Wonkette about one Sylvia Driskell from Auburn, Nebraska.  She has filed a handwritten complaint in the federal court for the District of Nebraska against all homosexuals on behalf of God and his Son, Jesus Christ.  The complaint alleges “sin.”

I expect the suit will be dismissed for any number of reasons including the inability to provide an address for service much like this earlier case from Nebraska where a state senator sued God to comment on the ability of court access by the public.  There is also the question of jurisdiction, to wit which federal law or rule can the plaintiff invoke that gets the case properly before the Court.

I’ve worked with a lot of public patrons/pro se litigants over the years.  They have ranged from, in my opinion, fairly competent to having no grasp on reality in regard to what is a justiciable issue.  I feel for the librarians, if any, who had to discuss the case with Driskell pre-filing.

In a somewhat related story, the Massachusetts Supreme Judicial Court denied a law license to one Randy Britton for a variety of reasons.  One is that he used a letter of recommendation that was part of a settlement agreement in a civil suit against the lawyer who wrote it.  The lawyer filed a criminal complaint against Britton which was later dismissed.  The letter was part of related civil actions.  The Court also found Britton failed to disclose other cases including one where he sued over a denial of a license for assault weapons.  He also had a “substantial history of initiating pro se legal actions, the majority of which have been unsuccessful, and some of which have resulted in sanctions or an order to pay restitution.”  Read more at the ABA Journal.

Finally, the new Indiana Tech Law School in Fort Wayne, Indiana, has not received accreditation in its second year of operation.  I’ve written before about the school, most of it wondering why it exists in the current academic climate.  If I remember correctly, it had to do with that part of Indiana being an underserved market with potential applicants going off to Michigan and Ohio for an education.  The story in the Fort Wayne News-Sentinel quotes school representatives as saying the school will make improvements to the program once it receives the inspection report.  Well, good luck to that.

Mark

Supreme Court Action: Campaign Contributions for Judges and Conciliation Efforts by the EEOC

The Supreme Court issued two opinions this morning.  The first, Williams-Yulee v. Florida Bar (13-1499), decides whether a rule in the Florida Code of Judicial Conduct baring direct solicitation of contributions by a candidate for judicial office violates the First Amendment.  The Court declares it does not.  Williams-Yulee posted an online letter directly soliciting funds for her campaign.  She was disciplined by the Florida Bar for violating the Code and the Florida Supreme Court upheld the disciplinary action.

The Supreme Court affirmed the decision of the Florida Supreme Court noting that it is a compelling state interest to place rules in place that maintain the trust of the people in the judiciary.  Judicial elections are different from legislative or executive elections in that those candidates are essentially politicians who are likely to respond to the preferences of their donors.  Judges, on the other hand, must decide even-handedly the issues before them.  The Court also noted that many of the contributors are likely to be lawyers who may appear before the judge.  Recusals and similar actions in these circumstances are not enough to necessarily maintain public trust in the judiciary.

Chief Justice Roberts delivered the opinion of the Court, except as to Part II.  Justices Breyer, Sotomayor, and Kagan joined the opinion in full.  Justice Ginsburg joined the opinion except as to Part II.  Justice Breyer filed a concurring opinion.  Justice Ginsburg filed an opinion concurring part and concurring in the judgment and was joined by Justice Breyer as to Part II.  These concurrences and exceptions were related to levels of scrutiny applied and not to the application of the First Amendment.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas.  Justices Kennedy and Alito each filed dissenting opinions.  The dissents would strike down the ban for various reasons in applying First Amendment protections.

The second case was not, in comparison, fractious.  That case is Mach Mining LLC v. EEOC (13-1019).  Title VII gives the EEOC broad discretion in settling claims made against an employer.  The statute specifically provides a requirement that the Commission endeavor to end the “alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  The EEOC may then file a lawsuit if those efforts fail.  However, nothing said or done in those proceedings may be used as evidence subsequently without explicit permission of the persons concerned.

The procedural history of this case is relevant.  The EEOC sent Mach Mining a letter stating it received complaints about employment discrimination and that a representative would begin the informal settlement process.  The Commission sent a second letter about a year later stating that these conciliation efforts failed.  It sued Mach Mining in federal court.  Mach Mining argued that the Commission had not negotiated in good faith.  The EEOC responded that its efforts were not subject to judicial review.  The District Court said it could review the efforts but allowed the Commission to immediately appeal the decision to the Seventh Circuit.  The Appellate Court reversed.

The Supreme Court vacated that decision and remanded.  The effort for conciliation is reviewable but the standard is very narrow based on the language of Title VII.  Mach Mining argued that the actual conciliation be reviewed using the National Labor Relations Act (NLRA) to determine whether the Commission acted in good faith.  The Court rejected that as the NLRA is process-based.  Title VII, on the other hand, is not about process but merely requires the Commission to negotiate before filing suit.  All the Commission has to do is inform the employer about the charged conduct and then negotiate.  A sworn affidavit from the Commission to that effect will meet its statutory obligations to that effect.  The employer can only dispute whether these things have taken place.  The Commission merely needs to carry out these requirements if the reviewing court finds that they have not taken place.

Justice Kagan delivered the opinion for a unanimous Court.  So let it be written, so let it be done.

Mark