A Deeply Misguided Fifth Circuit Ruling on Voting Rights and the Twenty-Sixth Amendment

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar comments on a recent decision by a divided three-judge panel of the Fifth Circuit holding that a Texas vote-by-mail law that prefers people who are 65 or older does not violate the Twenty-Sixth Amendment of the federal Constitution. Amar explains why the decision is “deeply misguided” and runs counter to the clear words of the Constitution.

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Nealy v. County of Orange

Docket: G058036(Fourth Appellate District)

Opinion Date: September 14, 2020

Judge: Thompson

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury, Real Estate & Property Law

Wagon Wheel Canyon Loop Trail (the Trail) is located in Thomas F. Riley Wilderness Park (the Park), a public park owned and operated by Orange County, California. Before the incident at issue in this case, a wooden lodgepole fence ran perpendicularly across the mid-point of the eastern half of the Trail loop, serving as an entrance and exit for the Trail, and created a physical barrier cyclists had to maneuver around when riding either north or south on the Trail. Plaintiff Sean Nealy “had ridden his bicycle on and along [the Trail] several times in the past, [and] knew of the existence of the [perpendicular] wooden lodgepole fence." At some point unknown to plaintiff, the lodgepole fence was replaced with new fencing, which consisted of wooden fenceposts or “pylons” between which were strung horizontally, gray colored wire cables. Like the original lodgepole fence, the new perpendicular fence “divided” the southern and northern portions of the Trail loop, “separating each direction of travel.” However, the new fence actually ended before it reached the boundary of the Trail, and there was an opening between the fence’s western-most post and the parallel fencing at the western edge of the Trail. Plaintiff, an experienced cyclist, was riding his bicycle on the Trail. He noticed the lodgepole fence had been removed, but did not see the wire cables strung between the new fenceposts. He mistakenly believed he could ride between the fenceposts, but instead, rode directly into the wire cables, where he was thrown over the handlebars and onto the ground, resulting in serious injuries. He sued the County, alleging (1) Negligence (Premises Liability)”; and “(2) Dangerous Condition of Public Property.” County demurred, asserting plaintiff’s claims were barred both by Government Code section 831.4’s “trail immunity” and section 831.7’s “hazardous activity immunity.” The trial court sustained the demurrer based on trail immunity, finding the new fencing was a “condition” of the Trail for which County was statutorily immune. Finding no reversible error, the Court of Appeal affirmed the trial court.

Brue v. Al Shabaab

Docket: B294814(Second Appellate District)

Opinion Date: September 14, 2020

Judge: Dennis M. Perluss

Areas of Law: Civil Procedure, Personal Injury

The Court of Appeal affirmed the trial court's order denying plaintiffs' request for entry of a default judgment and dismissing their wrongful death action against the terrorist organization Al Shabaab. This action stemmed from Al Shabaab's murder of 148 students in their dormitories at Garissa University in Kenya, including 21-year-old Angela Nyokabi Githakwa. The court held that the trial court did not violate the Githakwa Parties' due process rights by determining that it lacked jurisdiction over Al Shabaab. In this case, the trial court provided the Githakwa parties adequate notice and an opportunity to address personal jurisdiction. Furthermore, the trial court correctly concluded that it lacked personal jurisdiction over Al Shabaab where Al Shabaab is not subject to the trial court's general jurisdiction and the trial court lacked specific jurisdiction over Al Shabaab for the Garissa University attack.

Murray v. UPS Capital Ins. Agency, Inc.

Docket: G058353(Fourth Appellate District)

Opinion Date: September 14, 2020

Judge: Kathleen E. O'Leary

Areas of Law: Commercial Law, Consumer Law, Insurance Law, Professional Malpractice & Ethics

David Murray purchased used computer equipment worth nearly $40,000, which was damaged by the United Postal Service (UPS) while it was being transported from California to Texas. Murray believed he purchased appropriate insurance to cover this loss, but the insurance company denied his claim. Murray sued his insurance broker, UPS Capital Insurance Agency (UPS Capital), for breach of contract and negligence, claiming UPS Capital owed him a special duty to make the insurance policy language understandable to an ordinary person and to explain the scope of coverage. The court granted UPS Capital’s motion for summary judgment after concluding there was no heightened duty of care and dismissed Murray’s lawsuit. On appeal, Murray asked the Court of Appeal to create a new rule that brokers/agents, specializing in a specific field of insurance, hold themselves out as experts, and are subject to a heightened duty of care towards clients seeking that particular kind of insurance. While the Court declined the invitation to create a per se rule, it concluded Murray raised triable issues of fact as to whether UPS Capital undertook a special duty by holding itself out as having expertise in inland marine insurance, and Murray reasonably relied on its expertise. Therefore, the Court reversed the judgment of dismissal and remanded the matter for further proceedings.

California v. Superior Court (Frezier)

Docket: D077864(Fourth Appellate District)

Opinion Date: September 14, 2020

Judge: Cynthia Aaron

Areas of Law: Constitutional Law, Criminal Law

In October 2019, Christopher Frezier was found not guilty by reason of insanity of a felony offense. The trial court committed him to a state hospital pursuant to Penal Code section 1026. At the time of the commitment, the trial court calculated Frezier’s maximum term of commitment as three years with credits for 829 days, consisting of credits for both the actual time served in custody prior to his commitment and conduct credits pursuant to section 4019 for the time spent in county jail. Despite his commitment to a state hospital to receive treatment, Frezier was never transported to a hospital and instead, was left in the county jail for unknown reasons. After spending almost one year in jail after his commitment, Frezier filed a petition for writ of habeas corpus asserting that he was entitled to immediate release because he had served his maximum term of commitment, after accounting for his precommitment custody and conduct credits combined with the additional time served in the county jail postcommitment. The trial court agreed and granted relief, ordering that Frezier be released. The District Attorney sought extraordinary relief and an immediate stay to prevent Frezier’s release by petitioning for a writ of mandate. The District Attorney argued Frezier was not entitled to section 4019 conduct credits under the relevant statutes. The Court of Appeal concluded that under the plain language of the relevant statutes, Frezier served more than his maximum term of commitment and the District Attorney failed to demonstrate any error warranting extraordinary relief. The Court, therefore, denied the District Attorney’s writ petition.

People v. Henderson

Docket: B298366(Second Appellate District)

Opinion Date: September 14, 2020

Judge: Segal

Areas of Law: Criminal Law

The Court of Appeal affirmed defendant's conviction and sentence for two counts of assault with a semiautomatic firearm (one for each of two victims), one count of possession of a firearm by a felon, and one count of assault by means likely to produce great bodily injury. The court held that defendant has not shown in this appeal that his trial attorney provided ineffective assistance at trial because the record does not disclose why his lawyer chose not to call the witness or that his attorney's decision was below the standard of care. The court also held that the trial court did not have discretion to impose concurrent sentences on the two convictions for assault with a semiautomatic firearm. The court stated that Proposition 36 eliminated a trial court's discretion to impose concurrent sentences on convictions for multiple serious or violent felonies.