Alerts
SCOTUS UPDATE: Are States Barred from Enforcing Federal Immigration Law?
by Jennifer Hebert
December 13, 2011
Arizona v. United States
(Oral Argument Expected in April/May 2012)
As expected, the Supreme Court has accepted for review Arizona v. United States, a potentially landmark case asking the Supreme Court to determine how far a state can go to enforce federal immigration laws. Supporters on both sides of this case have made national headlines arguing their opinions as to the constitutionality and the necessity of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070). Supporters argue that the federal government's failure to sufficiently enforce immigration laws forces border-states to bear an unreasonable and unbearable financial burden thereby necessitating state-level action to enforce federal laws. Opponents argue that immigration is exclusively a federal issue and that states should not interfere. The Supreme Court will now have its opportunity to opine on the issue (minus Justice Elena Kagan who will not participate in the case due to her work on the case while United States Solicitor General).
Basic Facts: SB 1070 was enacted by the Arizona legislature in April 2010. Among its most controversial provisions are those requiring police officers to check a person's immigration status while enforcing other laws (i.e. traffic stops, etc.) and making it a crime for an immigrant to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona.
Previous Litigation: In July of 2010, United States District Court Judge Susan Bolton enjoined four provisions of the law on the eve of their effective date finding that the provisions were preempted by federal law. The provisions blocked by Judge Bolton:
- Require local police officers to check a person's immigration status while enforcing other laws;
- Make it a crime for an immigrant to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona;
- Make it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or work in Arizona; and
- Allow police to arrest without a warrant any person the officer has "probable cause to believe" has committed a crime, anywhere, that would make the person subject to deportation.
Judge Bolton did not block certain other provisions of the law including provisions banning sanctuary cities and making it illegal to hire day laborers if doing so impedes traffic. Judge Bolton's order also allowed parts of the law mandating sanctions for employers who hire illegal immigrants.
A divided panel of the Ninth Court of Appeals upheld the District Court ruling in April, and similar laws are currently being challenged in Georgia, Alabama, Utah, and South Carolina.
Question for the Court: To what extent are states preempted by federal law from enacting measures relating to immigration? Do Arizona's laws go further than necessary to cooperate with federal government in enforcing immigration laws and instead create a separate immigration policy?
SCOTUS UPDATE: Supreme Court Agrees to Hear Appeal of Texas Redistricting Case
by Jennifer Hebert
December 13, 2011
Perry v. Perez, et al
Perry v. Davis, et al
Perry v. Perez, et al
The United States Supreme Court has agreed to hear Texas officials' appeal of a controversial new redistricting plan. On Friday, the Court issued an order blocking use of the redistricting maps recently created by a federal judicial panel and setting oral argument for January 9, 2012. The Order issued by the Court on Friday effectively prevents Texas candidates from filing for office until a resolution is reached because of the uncertainty of which district the candidates may ultimately reside in and likely will result in a delay in primaries which are currently scheduled for March. Due to the time-sensitive nature of the issues raised, Texas Attorney General Greg Abbot asked the Supreme Court to intervene on an expedited basis last week.
The dispute over redistricting in Texas is especially contentious this year given the four new Texas congressional seats at issue. In fact, the map currently at issue isn't the first map to be challenged in the state this year. Democrats previously challenged the original map which was drawn by the Republican-led Texas legislature resulting in a federal judicial panel re-drawing the maps. Abbot now argues in the appeal that the new map is "fatally flawed" and should never be used in Texas elections.
While every state is required to redraw their district maps every ten years after the Census, Texas is one of only a handful of states required to have its district maps approved by the United States Justice Department under the Voting Rights Act of 1965.
SCOTUS UPDATE: Can the Government Require Health Insurance for All Americans?
by Jennifer Hebert
November 14, 2011
Dept. of Health and Human Services v. Florid et al
Florida et al v. Dept. of Health and Human Services
Nat'l Federation of Independent Business v. Sebelius
(Oral Argument Expected February/March 2012)
Whether you agree or disagree with the mandates set forth in the sweeping Patient Protection and Affordable Care Act, these cases are likely to garner more attention than any other case before the Supreme Court this term. While the White House fully supports the Act and believes the Supreme Court will uphold the law, 28 states have publicly challenged the constitutionality of the Act. Among the cases accepted by the Supreme Court is the largest judicial challenge to the Act and involves a joint filing by 26 states including Florida, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming. Oklahoma and Virginia have also challenged the law in separate legal proceedings.
Basic Facts: In March of 2010, President Obama signed into law the Patient Protection and Affordable Care Act. The Act includes multiple mandates including a requirement that almost all Americans purchase personal health insurance by 2014. The Act also requires states to fund Medicaid at a greatly increased level or risk losing all federal Medicaid funds and mandates certain levels of health insurance for state employees. Among other things, the Act also changes certain aspects of the private health insurance industry and public health insurance programs, mandates increases in insurance coverage for pre-existing conditions, makes Medicaid available to more Americans, subsidizes health insurance costs for low income Americans, reduces or eliminates co-pays for certain preventative healthcare needs, and requires Americans who receive health care benefits over a certain dollar value to pay taxes on such benefits.
Previous Litigation: In the last year, at least six different federal courts have addressed the constitutionality of the act. Only three of these cases have been accepted for review by the Supreme Court at this time.
Questions for the Court: This case requires the Justices to address three specific issues including the key question of whether the federal government can require all Americans to have health insurance or face penalties for failing to do so. The Justices must also decide whether the federal government can force states to increase their share of Medicaid costs or risk losing all Medicaid funding if they refuse to do so. If the Justices find that such mandates are unconstitutional, they then have to decide whether the entire law must be stricken or only those sections of the law they find to be unconstitutional. Other issues raised in other litigation relating to the Act will not be heard in this case.
SCOTUS UPDATE: Are FCC Regulations on Indecency Unconstitutionally Vague?
by Jennifer Hebert
October 20, 2011
In the next few months, the United States Supreme Court will hear oral arguments in several noteworthy cases which could have profound impacts on various issues from broadcast decency regulations to affirmative action. Many believe health care reform and state immigration regulation may also be added to this term, but no cases have yet been added to the Court's docket and likely will not until at least December. Continue to watch our blog as we post additional summaries of and updates on these potentially landmark cases.
Federal Communications Commission v. Fox Television Stations
(Oral Argument Date Yet to Be Decided)
It's unusual for a year to go by without some controversy over indecency on television from the infamous wardrobe malfunction during the 2004 Super Bowl (which itself it still playing out on appeal in the Third Court of Appeals) to Melissa Leo's inadvertent flub at the 2011 Oscars. This year the Supreme Court will take on these types of situations by analyzing the constitutionality of FCC regulations on indecency on television.
Basic Facts
This case stems from three unrelated FCC violations one involving brief nudity in an NYPD Blue episode on ABC in 2003 and the other two involving the use of a single expletive during two live Fox award shows in 2002 and 2003. In both cases, the FCC issued fines and Fox and ABC appealed.
Previous Litigation
In an earlier case involving the same Fox award shows, the Supreme Court ruled that the FCC had authority to change its profanity policy from issuing fines for repeated uses of profanity in a single television event to issuing fines for even a single use in a television program. That case, however, failed to address whether the FCC's rules were unconstitutionally vague (as is now presented) and such question was sent back to the Second Circuit for decision.
When sent back, the Second Circuit Court of appeals invalidated the FCC decision finding that two broadcasts including expletives on live award shows were indecent pursuant to regulatory and statutory rules. The Court's decision was based on a finding that the rules under which the fines were issued were unconstitutionally vague (the "Award Show Case").
In a separate proceeding, the Second Circuit applied its ruling from the Award Show Case to again overrule a fine issued by the FCC against ABC for brief nudity in an NYPD Blue episode. The two cases have been consolidated by acting Solicitor General Neal K. Katyal for joint consideration by the Supreme Court on the basis that considering the two cases together will allow the Court to consider application of FCC policy to both live and scripted television.
Question for the Court
Whether FCC regulations on decency are so vague that they are unconstitutional or sufficiently clear to be enforced?
SCOTUS UPDATE: Corporations Do Not Have Personal Privacy Rights Under the FOIA
by Jennifer Hebert
March 16, 2011
On March 1, 2011, the Supreme Court issued a unanimous ruling (with Justice Kagan not participating) holding that corporations do not have personal privacy rights for purposes of Exemption 7(C) of the Freedom of Information Act (FOIA). In Federal Communications Commission v. AT&T, Inc., the court overturned the Third Circuit's previous ruling that AT&T was subject to the "personal privacy" exemption allowed by the FOIA and therefore could withhold documents otherwise subject to an FOIA request. While the Third Circuit had held that AT&T was subject to the exemption because the term "person" as defined in the FOIA included corporations, the Supreme Court disagreed.
In fact, the Supreme Court expressly refused to use the definition of "person" included in the FOIA to infer the meaning of "personal" noting that while words with the same root may have similar meanings, adjectives sometimes "acquire distinct meanings of their own." The Court also noted that "personal" is often used "to mean precisely the opposite of business-related" and dictionary definitions suggest that "‘personal' does not ordinarily relate to artificial ‘persons' such as corporations." As a result, the Court refused to find that corporations such as AT&T have personal privacy rights under the FOIA.
SCOTUS UPDATE: Court Rules in Favor of Funeral Protestors
by Jennifer Hebert
March 2, 2011
On Wednesday, March 2, 2011, the United States Supreme Court issued a ruling in favor of the controversial leader of the Westboro Baptist Church (Fred Phelps) in the controversial Phelps v. Snyder litigation.
As reported on this website on February 18, 2011, the linchpin of the case involved a determination of the right to free speech versus the rights of freedom of religion and freedom to peaceably assemble, as well as implicating privacy rights for the families of fallen soldiers. In its opinion, the eight-member majority led by Chief Justice John Roberts (only Justice Samuel Alito dissented) found in favor of Phelps and overruled a jury verdict in favor of the Snyder family in the amount of $5 million. The Court, being careful to distance themselves from any implication that they approved of Phelp's actions, relied on First Amendment principles and emphasized the important of protecting free speech, even when hurtful. While noting that Phelps and his followers' actions did inflict pain on the Snyder family, the court also implied that the facts of this case affected their decision primarily because the protest took place virtually out of sight of the Snyder family and attendees of Matthew Snyder's funeral and there was no indication that the protest actually interfered with the funeral.
SCOTUS UPDATE: Another Controversial Arizona Immigration Law Examined
by Jennifer Hebert
March 1, 2011
In the past few months, the United States Supreme Court (SCOTUS) has heard oral arguments in several noteworthy cases which could have profound impacts on various issues from freedom of speech and freedom of religion to privacy rights of corporations and immigration reform. Continue to watch our website for additional posting summaries and updates on these potentially landmark cases.
US Chamber of Commerce v. Whiting
(Oral Argument held on December 8, 2010)
As immigration law issues continue to pervade the nightly news, the first of several immigration laws enacted by the state of Arizona over the last few years is now set for contemplation by the Supreme Court.
Basic Facts: In 2007, Arizona (along with the governor of Arizona at the time, Janet Napolitano, now U.S. Secretary of Homeland Security) enacted the Legal Arizona Workers Act, which requires employers in Arizona to verify worker's legal employment status through a federal electronic verification system (E-Verify) and imposes civil fines on businesses (including revocation of state licenses to do business) who employee illegal aliens. Despite the fact that Arizona has yet to attempt to enforce the law against any employer, the Act was not well received by business, civil rights or immigration organizations in the state who argue that the Act is preempted by federal immigration law, including the 1986 Immigration and Reform Act.
Previous Litigation: The Legal Arizona Workers Act has previously been upheld by both the Arizona District Court and the Ninth Circuit Court of Appeals partially due to lack of specific preemptive intent by the U.S. Congress. The Ninth Circuit also specifically held that regulating the employment of unauthorized aliens was within a state's police powers.
Question for the Court: Is the Legal Arizona Workers Act preempted by Federal immigration law?
SCOTUS UPDATE: Do Corporations Have Rights of Privacy?
by Jennifer Hebert
February 22, 2011
In the past few months, the United States Supreme Court (SCOTUS) has heard oral arguments in several noteworthy cases which could have profound impacts on various issues from freedom of speech and freedom of religion to privacy rights of corporations and immigration reform. Continue to watch our website for additional posting summaries and updates on these potentially landmark cases.
Federal Communications Commission v. AT&T, Inc.
(Oral Argument held on January 19, 2011)
Privacy rights of corporations have been at issue in numerous cases through the years, but this case takes a look specifically at whether a corporation has privacy rights similar to that of an individual.
Basic Facts: In 2004, AT&T voluntarily disclosed to the FCC that one of its subsidiaries had erroneously charged the Federal E-Rate program for services provided to a Connecticut school district. After the FCC opened an investigation and requested voluminous amounts of internal documentation from AT&T, the FCC and AT&T reached a settlement of the matter. The settlement, however, was not well-received by Comp-Tel, a trade association representing long-distance telephone service providers, local phone carriers, and other AT&T competitors, and Comp-Tel requested documents from the FCC under the FOIA. The FCC refused to produce sensitive cost and billing data it had received from AT&T but also refused AT&T's request to withhold the rest of the investigatory file, which AT&T claimed was subject to Exemption because it "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The FCC explicitly rejected AT&T's claim of personal privacy and stated that the exemption applied only to the personal privacy rights of individuals.
Previous Litigation: After AT&T filed an unsuccessful appeal with the FCC, the Third Circuit Court of Appeal unanimously disagreed with the FCC's interpretation of the FOIA exemption at issue and held that the Administrative Procedure Act in which the FOIA is included specifically defines "person" to include a corporation.
Question for the Court: Does a certain Freedom of Information Act exemption which exempts from disclosure information compiled for law enforcement purposes when disclosure of such information could be considered an unwarranted invasion into "personal privacy" apply to corporations?
SCOTUS UPDATE: Does Freedom of Speech Trump the Freedom of Religion and the Right to Peaceably Assemble?
by Jennifer Hebert
February 18, 2011
In the past few months, the United States Supreme Court (SCOTUS) has heard oral arguments in several noteworthy cases which could have profound impacts on various issues from freedom of speech and freedom of religion to privacy rights of corporations and immigration reform. Continue to watch our website for additional posting summaries and updates on these potentially landmark cases. First up — Snyder v. Phelps.
Snyder v. Phelps
(Oral Argument held on October 6, 2010)
The facts of this case have been all over the news in various forms since 2006 when Albert Snyder's son, Marine Lance Corporal Matthew A. Snyder, was killed in action while deployed in Iraq. Little did Snyder know that his son's tragic death would lead to one of the most watched Supreme Court cases in years, implicating the United States' sacred freedoms of religion and freedom of speech.
Basic Facts: At Matthew Snyder's military funeral, well known protester Fred Phelps and his follower's from the Westboro Baptist Church (known for disrupting military funerals all over the United States with anti-homosexuality protests) picketed carrying inflammatory signs and later published a controversial poem allegedly about Matthew Snyder's upbringing on the WBC's website.
Previous Litigation: Snyder successfully filed suit against Phelps and WBC for intentional infliction of emotion distress, invasion of privacy, and conspiracy based on their actions related to Matthew Snyder's funeral and was awarded $2.9 million in compensatory damages and $8 million in punitive damages from the jury at trial. On appeal, the Fourth Circuit Court of Appeals overturned the trial court judgment citing first amendment grounds and stating that Phelp's speech was protected as a result. The Fourth Circuit Court of Appeals also ordered Snyder to pay Phelp's legal bills of more than $16,000.
Question for the Court: The Supreme Court now must determine whether the First Amendment's freedom of speech guarantee should outweigh an individual's right to freedom of religion and peaceful assembly, as well as related issues such as whether a funeral should be afforded the same level of privacy one expects to receive in his home or is a public forum and whether the parents of a fallen soldier are "public figures" such that they have lesser privacy rights.
The Internet and Its Impact on Litigation: What Can Attorneys and Judges Cite in the Internet Era?
by Jennifer L. Hebert
February 2, 2011
In today's world of online dictionaries and Wikipedia, online research and citation of online sources is becoming more prevalent in legal writing for both attorneys and judges. But what can and should you cite as an attorney? What should you avoid? And how do you know what's accurate and what's not? Unfortunately, there isn't a clear answer, but by following the tips below, you can make an informed decision when necessary:
- Always check the applicable rules and professional rules of conduct for guidance. While most rules do not yet directly address these issues, they may at least provide some guidance.
- Research your source to determine if it is reliable. If there is any question as to the reliability of the information, it most likely is best not to use that source and find an alternative source if one is available. While some online resources are generally reliable, others are not. For example, while it does occasionally contain mistakes, Wikipedia has been found to be accurate as any other encyclopedia in multiple studies. But because Wikipedia consists of user-generated content, you would be wise to double check any information received through Wikipedia with other sources when available.
- Know what the courts are citing and what they are avoiding. For example, Wikipedia has been cited for general propositions by multiple courts but has not been widely accepted for use. Urbandictionary.com has also been cited by multiple courts, and Mapquest.com appears to be generally cited by courts throughout the country.
- Be careful using online citations. Web addresses change on a regular basis, and as a result, your citations may not be correct by the time someone else is trying to find the source you are citing.
- Most importantly, ask yourself whether the information you want to cite would be useful for the court. Is it something the court should consider? In general, if the information is collateral to the real issues involved, don't cite it. On the other hand, definitions or issues for which the court can take judicial notice can generally be cited without concern if the information comes from reliable source.
Overall, use common sense and good judgment and you should reach the right decision.
Litigation to Collect a Past Due Account
by Jennifer L. Hebert
August 24, 2010
In this difficult economy, collecting receivables from customers can be challenging. This posting describes some of the litigation basics to collect past due receivables.
Demand Letter
Sending a demand letter from an attorney may spur the delinquent customer into making a payment - or at least spark a negotiation. Under Texas law, sending a demand letter may also (but does not automatically) allow you to collect attorneys' fees in the event you do file a lawsuit to collect the amounts owed (which is similar to the UK requirement to show that the lawsuit was necessary).
Lawsuits
Filing a lawsuit requires a petition prepared by an attorney and filed with the court. Often in collection cases, where the facts are not in dispute, the lawsuit can be a "suit on a sworn account" which may allow parties to dispense with a lengthy discovery process and lead to a speedier result if the debtor does not assert affirmative defenses.
Discovery Process
The discovery process allows the parties to learn more about the facts and the opposing party's case, typically through depositions (questions by the attorney asked of the witness under oath in front of a court reporter), requests for production of documents, requests for admission (written factual assertions that must be either admitted or denied), and interrogatories (written questions that must be answered under oath by the other side). This process is similar to the discovery process in UK litigation, but wider in scope and with the added burden of the deposition procedure.
Summary Judgment
A summary judgment motion is filed when a party believes the facts are not in dispute and, as a matter of law, the party should win. It is often used by creditors in collection cases where the debtor either does not appear in court or fails to state a credible defense.
Trial
If the creditor has not won on summary judgment, he may actually have to prove his case before a judge or jury in a trial. However, the vast majority of cases in Texas are settled prior to trial. The time from filing the lawsuit to judgment often ranges from six months to two years. Though most cases are not appealed, there is generally a two-stage appeal process in Texas, first to the Court of Appeals and thereafter to the Texas Supreme Court.
While courts in the US have a reputation for being slow and proceedings may be expensive as compared to courts in the UK, the collection process can proceed faster than other litigation when the facts are not in dispute. The most difficult part of a collection lawsuit can be collection of a judgment after the lawsuit is won. (This will be the subject of a future posting.) A crucial distinction from the UK system is that the filing of an appeal does not delay enforcement of a judgment unless the debtor posts security for the judgment amount.
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