Mother Jones reports “Washington’s state Supreme Court has ruled that it’s unconstitutional to sentence teen offenders to life in prison without parole because their brains are less developed than those of adult offenders, arguing that they should be granted a second chance because of their potential for growth.

“The 5-4 decision on Thursday comes one week after the court abolished the death penalty in the state. Washington is now one of at least 21 states, along with the District of Columbia, that ban life-without-parole punishments for crimes committed by people under the age of 18.”

On June 8, 2018, New York Legal Assistance Group (NYLAG) submitted a request under the Freedom of Information Act to the Board of Immigration Appeals (BIA), requesting that the BIA make all of its unpublished decisions since 1996 publicly available in an electronic format under 5 U.S.C. § 552(a)(2) as the BIA’s decisions, whether published or unpublished, are “final opinions” and “orders” of the agency. EOIR denied NYLAG’s request, and NYLAG submitted an administrative appeal. On October 17, 2018, after EOIR and the BIA failed to respond by the statutory deadline, NYLAG filed suit in the U.S. District Court for the Southern District of New York, represented by attorneys at Public Citizen Litigation Group and NYLAG. NYLAG contends that the BIA’s failure to make its unpublished decisions publicly available in an electronic format violates FOIA or, in the alternative, the Administrative Procedure Act. Here’s the text of the complaint.

The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”

For an analysis, see this blog post by Reba Kennedy.

In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation. The complaint alleged that Trump “made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity.” The judge, however, found “Mr. Trump’s statement constituted ‘rhetorical hyperbole’ that is protected by the First Amendment.”

H/T to Constitutional Law Prof Blog

On Constitutional Law Prof Blog, Steven D. Schwinn reports that Judge Emmet G. Sullivan (D.D.C.) ruled in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President’s other three arguments for dismissal–that the plaintiffs lack a cause of action, that they’ve failed to state a claim (because the President’s business interests aren’t “emoluments” under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds. Here’s the text of the memorandum opinion.

Senator Jeff Merkley yesterday sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants’ actions violate the separation of powers and the Senate’s constitutional role in providing advice and consent on Judge Kavanaugh’s nomination to the Supreme Court. Here’s the text of the complaint for declaratory and injunctive relief.

H/T to Constitutional Law Prof Blog.

Montgomery County Judge Steven O’Neill declared Bill Cosby a “sexually violent predator” yesterday as he prepared today to sentence Cosby for sexually assaulting Temple University women’s basketball administrator Andrea Constand at his estate near Philadelphia in 2004. Today 81-year-old Cosby was sentenced to 3-to-10 years in a maximum security state prison.

In this court filing Lawfare editor in chief Benjamin Wittes, Harvard Law School professor Jack Goldsmith and University of Nevada law professor Stephan Bates are urging a federal judge to unseal the Watergate “Road Map,” a secret report sent to Congress in 1974 containing evidence about President Richard Nixon’s misconduct. The petition comes as debate mounts about how and when special counsel Robert Mueller will end his investigation of Russian election meddling.

Bates and Goldsmith credit the report’s transmission to the House Judiciary Committee as a turning point in the Watergate investigation, saying it culminated with the committee adopting articles of impeachment against Nixon. The options available to Mueller are more analogous to those faced by Watergate special prosecutor Leon Jaworski. They say the 55-page document known as the Road Map could offer Mueller a path to follow as his investigation presses forward.

H/T Courthouse News. — Joe

Special counsel Robert Mueller has filed a superseding criminal information against former Trump campaign chairman Paul Manafort who will be appearing in court today for a plea hearing. The superseding criminal information alleges a conspiracy against the US, money laundering, tax fraud, failing to file Foreign Bank Account Reports, and violating the Foreign Agents Registration Act.

— Joe

Since 2002, Medina County Law Library (Ohio) has contracted with LexisNexis to provide search services for approximately 100 private practitioners (attorneys who are not employed by the County). This access privilege for the private attorneys was paid by the law library. In 2018, LexisNexis informed the law library that it was cancelling this license mid-term because the listed subscribers were not government professional users employed by the subscriber.

On Sept. 6th, the Medina County Law Library sued LexisNexis for breach of contract. Here’s the text of the Motion for Temporary Injunction and  the LexisNexis Complaint

Of course LexisNexis was fully aware that the 100 or so Lexis users were private sector attorneys when the company entered and repeatedly renewed its license with the law library. So why the change? Probably because the Company thinks it would make more money by forcing the private practitioners to contract directly and individually with LexisNexis.– Joe

In AFGE v. Trump, Judge Ketanji Brown Jackson of the US District Court for the District of Columbia invalidated important sections of three executive orders issued by President Donald Trump that made it easier to terminate federal employees and weaken their labor unions. The court concluded “that many of the challenged provisions of the Orders at issue here effectively reduce the scope of the right to bargain collectively as Congress has crafted it, or impair the ability of agency officials to bargain in good faith as Congress has directed, and therefore cannot be sustained.” Here’s the text of the opinion. — Joe

On Constitutional Law Prof Blog, Ruthann Robson reports that “[i]n his opinion in Caliste v. Cantrell, United States District Judge for the Eastern District of Louisiana Eldon Fallon declared the bail practices of Judge Cantrell, an Orleans Parish Criminal District Magistrate Judge, unconstitutional as violative of due process under the Fourteenth Amendment.” — Joe

Four cities and two individuals filed suit yesterday against the Trump Administration, arguing that the Administration’s efforts to sabotage the Affordable Care Act violate the Administrative Procedure Act and the President’s duty to “take care that the laws be faithfully executed.” Here’s the text of the complaint for declaratory and injunctive relief.

H/T Constitutional Law Prof Blog. — Joe

As you may recall, PublicResource.org has been making available technical standards incorporated by reference in federal law contrary to the wishes of standards organizations that promulgate the standards. Yesterday, the DC circuit appeals court ruled that standards industry groups cannot control publication of binding laws and standards.

The federal district court for the District of Columbia ruled in favor of the standards organizations in 2017, and ordered PublicResorce.org not to post the standards. A three-judge panel of the Court of Appeals for the D.C. Circuit reversed that decision, ruling that the district court did not properly consider copyright’s fair use doctrine. It rejected the injunction and sent the case back to district court for further consideration of the fair use factors at play. “[I]n many cases,” wrote the court, “it may be fair use for [PublicResource.org] to reproduce part or all of a technical standard in order to inform the public about the law.”

As Judge Katsas wrote in his concurrence, the demands of the industry groups for exclusive control of the law “Cannot be right: access to the law cannot be conditioned on the consent of a private party.”

Here’s the text of the DC Circuit opinion in ASTM v. PublicResource.org. — Joe

Trump’s executive order ending the separation of refugee families detained in the US may run afoul of the Flores settlement because Flores requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Here’s the text of Flores v. Meese – Stipulated Settlement Agreement Plus Extension of Settlement.

Here’s links to two recent CRS reports:

Unaccompanied Alien Children: An Overview (R43599, Jan. 18, 2017)

Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions (R43623, Jan. 27, 2016)

— Joe