The Future of Faithless Electors and the National Popular Vote Compact: Part Two in a Two-Part Series

VIKRAM DAVID AMAR

In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.

Read More

Impoverishing Women: Supreme Court Upholds Trump Administration’s Religious and Moral Exemptions to Contraceptive Mandate

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision upholding the Trump administration’s religious and moral exemptions to the contraceptive mandate of the Affordable Care Act (ACA). Grossman provides a brief history of the conflict over the growing politicization of contraception in the United States and argues that the exemptions at issue in this case should never have been promulgated in the first place because they have no support in science or public policy.

Read More

In re Harris

Docket: 19-4081

Opinion Date: July 17, 2020

Judge: Per Curiam

Areas of Law: Bankruptcy

The Harrises filed a voluntary Chapter 13 bankruptcy petition. The bankruptcy court issued an automatic stay. The Harrises’ neighbors, the Cooleys, subsequently filed a lawsuit, seeking removal of an encroaching fence. While the state court case remained pending, the Harrises filed an adversary proceeding against the Cooleys, alleging violation of the bankruptcy court order by filing the state court complaint and that the Cooleys “continue to pursue to take control of" property of the bankruptcy estate (the fence) to which, the Harrises alleged, they were entitled by adverse possession. The bankruptcy court dismissed the Harrises’ adversary proceeding on abstention grounds. The district court and Sixth Circuit affirmed. The bankruptcy court did not abuse its discretion: the adverse possession claim is governed by state law, and in Ohio, such a claim is “disfavored.” The property at issue is not a part of the bankruptcy estate and the disposition of the Harrises’ adverse possession claim will not impact the administration of the bankruptcy proceeding. Rejecting an argument that the Cooleys knowingly violated the bankruptcy court order, the court noted that they are not creditors of the bankruptcy estate and the Harrises do not allege that they were injured by the state court action. The automatic stay provision provides that only “an individual injured by any willful violation of a stay” may recover damages, 11 U.S.C. 362(k)(1).

Carusone v. Warden, North Central Correctional Institution

Docket: 18-4175

Opinion Date: July 17, 2020

Judge: Raymond M. Kethledge

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Carusone was convicted of felony murder exclusively on the theory—as the prosecution repeatedly emphasized in its closing argument at trial—that Carusone “plunged [a] knife into the victim’s heart.” That theory, as the state court of appeals later found, was “plainly discredit[ed]” by medical records that the state admits it wrongfully suppressed before trial. Those undisclosed hospital records contained a doctor’s affidavit that the victim “died as a result of cardiac arrest brought about by the combined effects of multiple drugs and alcohol and by heavy stress and exertion following a physical confrontation.” The state court of appeals denied Carusone relief. The Sixth Circuit granted habeas relief. The state court “plainly misapplied the governing Supreme Court precedent,” in Brady v. Maryland and Kyles v. Whitley, when it held that the undisclosed evidence does not undermine confidence in the verdict. The reasoning of the court of appeals amounted to speculation that a jury would go further than any expert did, and find that “stress” from the stab wounds was a proximate cause of the victim’s death.

Dotson v. Kizziah

Docket: 19-6372

Opinion Date: July 17, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

While incarcerated for a Kentucky state conviction, Dotson was convicted, in 1999, of federal crimes and sentenced to 322 months of imprisonment to run consecutively to his Kentucky sentence. The following year Dotson, still incarcerated in Kentucky, was convicted in a Georgia state court and sentenced to 20 years of imprisonment. In 2004, Kentucky paroled Dotson into custody in Georgia. In 2011, the Bureau of Prisons (BOP) declined to designate the Georgia prison as the place where Dotson would serve his federal sentence. Dotson filed an unsuccessful habeas corpus action. In 2019, Georgia released Dotson to federal custody. Dotson sought to have the time he spent in custody in Georgia credited to his federal sentence. The Sixth Circuit affirmed the denial of relief. With respect to the transfer to Georgia, the federal government is permitted to waive its primary jurisdiction in favor of a state. Dotson’s argument that the BOP should have designated Georgia as his place of federal imprisonment is essentially an argument that his federal sentence should run concurrently with his Georgia sentence; 18 U.S.C. 3621(b) authorizes the BOP to designate a federal prisoner’s place of imprisonment, which effectively resolves whether sentences are served concurrently or consecutively; when the federal court is silent, the BOP decides. The BOP properly consulted the federal sentencing judge and considered the other pertinent factors including the seriousness of the offenses and Dotson’s criminal history.

George v. Youngstown State University

Docket: 19-3581

Opinion Date: July 17, 2020

Judge: Eric L. Clay

Areas of Law: Civil Rights, Education Law, Labor & Employment Law

In 2008, after being denied tenure, George filed a discrimination lawsuit against Youngstown State University and was reinstated as part of a settlement agreement. As soon as the university’s obligations under the agreement expired, it declined to renew George’s contract and terminated his employment as a professor. George applied to several other positions within the university but was rejected. He then filed employment discrimination and retaliation claims under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. Following discovery, the district court granted YSU summary judgment, finding that George either failed to show causation, failed to show he was qualified for the job, or failed to show that YSU’s claimed reasons for firing (or not hiring) him were pretextual. The court also dismissed one of George’s failure-to-hire claims— which arose after this lawsuit was filed—based on an administrative exhaustion requirement. The Sixth Circuit reversed. Viewing the evidence in the light most favorable to George reveals a genuine dispute of material fact as to each of the claims and the district court further erred in enforcing the administrative exhaustion requirement because the defendants expressly waived it below.

United States v. Barber

Docket: 19-6116

Opinion Date: July 17, 2020

Judge: Thapar

Areas of Law: Criminal Law

Barber pled guilty to conspiring to possess 50 or more grams of a mixture or substance containing cocaine base with the intent to distribute it, 21 U.S.C. 841(a)(1), (b)(1)(A)(iii), 846, and was sentenced to 210 months in prison (his guideline range was 262-327 months). Following enactment of the Fair Sentencing Act of 2010, 124 Stat. 2372, and the First Step Act of 2018, 132 Stat. 5194. Barber moved for a sentence reduction. The district court declined to reduce Barber’s term of imprisonment but reduced his term of supervised release. The Sixth Circuit affirmed, first finding Barber eligible for resentencing.Eligibility under the First Step Act “turns on the statute of conviction, not a defendant’s specific conduct.” The Act, however, commits the decision of whether to reduce a sentence to the discretion of district courts. Barber never asked the court to consider his post-sentencing conduct and cannot establish plain error. The court need not consider facts that no party enters into the record. Nor has Barber shown any effect on his substantial rights. The district court provided a more than adequate explanation, citing the 18 U.S.C. 3553(a) factors. The court discussed Barber’s three prior felony drug offenses and the large amount of cocaine base involved in his crime,

United States v. Bourquin

Docket: 19-1465

Opinion Date: July 17, 2020

Judge: Donald

Areas of Law: Criminal Law

Bourquin called the FBI to report a fabricated story, stating that “Raymond,” with whom he had been incarcerated, had described a plot to abduct, rape, sodomize, and set on fire a former federal prosecutor on August 10, 2017. The “hit” came from Bowman, a gang leader, who was serving a life sentence. FBI employees spent several hours transcribing, reviewing, and correcting the transcript of Bourquin's call. FBI agents had Bowman placed into segregation and traveled to interview Bowman, who said he had never heard of B.M. The U.S. Marshals Service deployed deputies to B.M.’s residence to provide 24-hour surveillance. FBI agents traveled to interview Bourquin. After video footage contradicted the story about "Raymond, agents transported Bourquin to a polygraph examiner (three hours away) for a four-hour test that indicated that Bourquin had fabricated his story. Bourquin pleaded guilty to maliciously conveying false information concerning an attempt to kill, injure or intimidate B.M., 18 U.S.C. 844(e). Although the government supplied no accounting of its expenses, the court applied a four-level enhancement under U.S.S.G. 2A6.1(b)(4), based on the government’s substantial expenditure of funds and imposed a 40-month sentence. The Sixth Circuit vacated the sentence. Section 2A6.1(b)(4)(B) requires more, such as a full accounting of expenditures or some accounting of expenditures coupled with facts that allow a sentencing court to reasonably assess the full expenditure of funds required to respond to an offense and whether those funds are substantial.