Lambda Legal is the oldest and largest legal organization in the United States committed to achieving full civil equality for the lesbian, gay, bisexual, and transgender community, as well as those living with HIV. It is a nonprofit organization that aims to achieve positive change within these diverse communities through means such as impact litigation, education, and public policy advocacy.

On April 25, 2014, Lambda Legal held its annual San Francisco Soirée at City View at the Metreon in the heart of San Francisco. Justia had the honor of being a gold event sponsor this year and sent a contingent of employee representatives from our headquarters in Mountain View to be present at the event.

As a company that works with educational, public interest and other socially focused organizations to make legal materials and consumer resources free and easily accessible online, Justia’s sponsorship of the Lambda Legal San Francisco Soirée was a natural extension of a mission our company has been exemplifying since its inception. Many of our employees are lawyers or have an educational or professional background in law, as well as contribute to the various online public interest projects, legal aid, civil rights, and educational projects in which Justia is involved. Attending the Lambda Legal event as a sponsor offered us not only the opportunity to financially support an organization with a mission complementary to Justia’s but also to keep abreast of Lambda’s most recent advocacy work on behalf of LGBT individuals nationwide.

Envtl. Prot. Agency v. EME Homer City Generation, L. P., United States Supreme Court (4/29/14)
Environmental Law, Government & Administrative Law

The Clean Air Act (CAA) requires national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, 42 U.S.C. 7408. Once EPA establishes NAAQS, it designates “nonattainment” areas; each state must submit a State Implementation Plan, (SIP), within three years of any new or revised NAAQS. From the date EPA determines that a SIP is inadequate, EPA has two years to promulgate a Federal Implementation Plan (FIP). SIPs must comply with a Good Neighbor Provision, and “contain adequate provisions … prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will … contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to” NAAQS. In response to flaws in its 2005 Clean Air Interstate Rule, identified by the D. C. Circuit, EPA promulgated the Cross-State Air Pollution Rule (Transport Rule), curbing nitrogen oxide and sulfur dioxide emissions in 27 upwind states to achieve downwind attainment of three NAAQS and providing that an upwind state contributed significantly to downwind nonattainment if its exported pollution produced at least one percent of a NAAQS in a downwind state and could be eliminated cost-effectively. EPA created an annual emissions “budget” for each upwind state and contemporaneously promulgated FIPs allocating each state’s budget among its pollution sources. The D.C. Circuit vacated the rule as exceeding EPA’s authority. The Supreme Court reversed. The CAA does not require that states be given another opportunity to file a SIP after EPA has quantified interstate pollution obligations. Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP within precise deadlines. That EPA had previously accorded upwind states a chance to allocate emission budgets among their sources does not show that it acted arbitrarily by refraining to do so in this instance. The Good Neighbor Provision does not dictate a method of apportionment, so EPA had authority to select from among reasonable options; nothing precludes the final calculation from relying on costs. By imposing uniform cost thresholds on regulated states, the rule is efficient and is stricter on states that have done less pollution control in the past and does not amount to “over-control.”

Read More: Justices Back Rule Limiting Coal Pollution

Highmark, Inc. v. Allcare, United States Supreme Court (4/29/14)
Patents

The Patent Act provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party,” 35 U.S.C. 285. The Federal Circuit has interpreted section 285 as authorizing fee awards only “when there has been some material inappropriate conduct,” or when it is both “brought in subjective bad faith” and “objectively baseless.” A health insurance company obtained a declaratory judgment that a patent was invalid and not infringed. The district court found the case “exceptional” and awarded attorney fees of $4,694,727.40, $209,626.56 in expenses, and $375,400.05 in expert fees. The court found a pattern of “vexatious” and “deceitful” conduct by the defendant in attempting to force other companies to purchase licenses, even after its own experts determined that its claims lacked merit. The Federal Circuit reviewed the determination de novo and reversed in part. A unanimous Supreme Court vacated. All aspects of a district court’s exceptional-case determination should be reviewed for abuse of discretion. That determination is based on statutory text that emphasizes that the district court is better positioned to make the “multifarious and novel” determination, which is not susceptible to “useful generalization” of the sort that de novo review provides, and is “likely to profit from the experience that an abuse-of discretion rule will permit to develop.” The word “exceptional” should be given its ordinary meaning: “one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated,” considering the totality of the circumstances.

Octane Fitness, LLC v. ICON Health & Fitness, Inc., United States Supreme Court (4/29/14)
Patents

The Patent Act authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases,” 35 U.S.C. 285. In Brooks Furniture, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith” as shown by clear and convincing evidence. ICON sued Octane for patent infringement. The district court granted summary judgment to Octane, but denied attorney’s fees under section 285. The Federal Circuit affirmed. The Supreme Court reversed, finding the Brooks Furniture framework “unduly rigid’  in light of the statutory grant of discretion to district courts. Section 285 imposes only one constraint on the award of attorney’s fees, limiting it to “exceptional” cases. Because the Patent Act does not define “exceptional,” the term should be given it ordinary meaning: “uncommon,” “rare,” or “not ordinary.” An “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both governing law and the facts) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. The Brooks Furniture standard was so demanding that it appeared to render section 285 superfluous of the courts’ inherent power to award fees in cases involving misconduct or bad faith. Section 285 imposes no specific evidentiary burden.

Read More About These Two Decisions: Watch Out Trolls: Supreme Court Expands Fee Shifting in Patent Cases

Courthouse News Service won a ruling in the Ninth Circuit recently for access to court filings. CNS went to federal court last year to challenge the Ventura County Superior Court policy of delaying the release of court opinions.  A U.S. district court judge dismissed the case, finding that it was not a First Amendment issue, but a claim that involved sensitive state information, and that the federal court should abstain. The Ninth Circuit overturned that ruling and remanded the case to the federal district court for a decision on the merits.

Courthouse News Service is a periodical that covers courthouses all over the United States. They send reporters into courts every day to review the filings and write about the newsworthy cases. Most courts in California allow reporters daily access to the filings, but Ventura County has a policy that delays reporter access until “official processing” is completed, at which point the cases are no longer breaking news.

The Ninth Circuit found a clear First Amendment interest in immediate reporter access to the opinions. In the opinion, Judge Wardlaw wrote, “CNS’s First Amendment right of access claim falls within the general rule against abstaining under Pullman in First Amendment cases. CNS’s right of access claim implicates the same fundamental First Amendment interests as a free expression claim, and it equally commands the respect and attention of the federal courts.” We have the featured the trial and appellate court filings on Justia Dockets. You can read the full opinion and summary on Justia, as well.

Legal news coverage was dominated this week by the Supreme Court Shuette decision, which upheld Michigan’s affirmative action ban for college admissions. Read a summary below of the Court’s decision along with a few other interesting opinions picked out by our writers this week.

Schuette v. Coal. Defend Affirmative Action, Integration & Immigration Rights, Unites States Supreme Court (4/22/14)
Civil Rights, Constitutional Law, Education Law

After the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, but that its law school admission plan’s limited use did not, Michigan voters adopted a new section of the state constitution (Proposal 2), prohibiting use of race-based preferences in the admissions process for state universities. The district court upheld Proposal 2, but the Sixth Circuit reversed, concluding that it violated Supreme Court precedent. The Supreme Court reversed. Justice Kennedy, with Chief Justice Roberts and Justice Alito, reasoned that the principle that consideration of race in admissions is permissible when certain conditions are met was not challenged; the issue was whether, and how, state voters may choose to prohibit consideration of such racial preferences. The decision by Michigan voters reflects an ongoing national dialogue; there was no infliction of a specific injury of the type at issue in cases cited by the Sixth Circuit. Individual liberty has constitutional protection, but the Constitution also embraces the right of citizens to act through a lawful electoral process, as Michigan voters did. Justices Scalia and Thomas stated that the question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. Stating that it did not, the Justices stated that the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact “has been squarely and soundly rejected.” Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but reasoned that the amendment only applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body; the Constitution permits, but does not require, the use of that kind of race-conscious program. The ballot box, not the courts, is the instrument for resolving debates about such programs. This case does not involve a diminution of the minority’s ability to participate in the political process.

Read More: The Supreme Court Again Fractures Over Race

State v. DeMarco, Connecticut Supreme Court (4/22/14)
Civil Rights, Constitutional Law, Criminal Law

Upon following up on complaints from Defendant’s neighbor relating to Defendant’s keeping of animals in his residence, a police officer concluded that a “welfare check” was necessary and made a warrantless entry into Defendant’s home. Defendant subsequently entered a plea of nolo contendere to two counts of cruelty to animals. Defendant appealed the trial court’s denial of his motion to suppress on the ground that the warrantless entry was justified under the emergency exception to the warrant requirement. The appellate court reversed, concluding that the evidence did not permit a finding that the police reasonably believed that a warrantless entry was necessary to help a person inside the dwelling who was in immediate need of assistance. The Supreme Court reversed, holding that the trial court properly concluded that, under the totality of the circumstances present in this case, a police officer reasonably would have believed that an emergency existed inside Defendant’s home.

McCutcheon v. Fed. Election Comm’n, United States Supreme Court (4/2/14) Civil Rights, Communications Law, Constitutional Law, Election Law

The Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002, impose base limits, restricting how much money a donor may contribute to a particular candidate or committee, and aggregate limits, restricting how much money a donor may contribute in total to all candidates or committees, 2 U.S.C. 441a. In the 2011–2012 election cycle, McCutcheon contributed to 16 federal candidates, complying with all base limits. He alleges that the aggregate limits prevented him from contributing to additional candidates and political committees and that he wishes to make similar contributions in the future. McCutcheon and the Republican National Committee challenged the aggregate limits under the First Amendment. The district court dismissed. The Supreme Court reversed, with five justices concluding that those limits are invalid. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis depends on the fit between stated governmental objectives and the means selected to achieve the objectives. The aggregate limits fail even under the “closely drawn” test. Contributing to a candidate is an exercise of the right to participate in the electoral process through political expression and political association. A restriction on how many candidates and committees an individual may support is not a “modest restraint.” To require a person to contribute at lower levels because he wants to support more candidates or causes penalizes that individual for “robustly exercis[ing]” his First Amendment rights. The proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. The justices noted the line between quid pro quo corruption and general influence and that the Court must “err on the side of protecting political speech.” Given regulations already in effect, fear that an individual might make massive unearmarked contributions to entities likely to support particular candidate is speculative. Experience suggests that most contributions are retained and spent by their recipients; the government provided no reason to believe that candidates or committees would dramatically shift their priorities if aggregate limits were lifted. Multiple alternatives could serve the interest in preventing circumvention without “unnecessary abridgment” of First Amendment rights, such as targeted restrictions on transfers among candidates and committees, tighter earmarking rules, and disclosure.

Read More: Supreme Court Strikes Down Limits on Campaign Contributions

United States v. Bergman, US 10th Cir. (3/28/14)
Constitutional Law, Criminal Law

Defendant-appellant Gwen Bergman was arrested when the hit-man she thought she hired to kill her husband was in fact an undercover police officer. After trial, it emerged that defendant’s lawyer was not a lawyer-in-fact, but a con man. Defendant applied for habeas relief on the ground that she received ineffective assistance of counsel. The district court agreed with her: the court vacated her conviction, and discharged her from supervised release (she had finished her prison term). Assuming the court’s decision to vacate the conviction it won at defendant’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. The district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed the district court’s decision to the Tenth Circuit. The government’s appeal raised the question of whether defendant could be exposed to a new trial and lawful conviction despite having successfully petitioned for habeas relief and served her jail sentence. Rather than contend categorically that only double jeopardy problems may preclude retrial, the government suggested that the remedy the district court selected was too attenuated from the right it found violated: defendant’s Sixth Amendment right to effective assistance of counsel. “[T]he presumptively appropriate remedy for a trial with an ineffective lawyer is a new trial with an effective one. . . . the district court failed to identify any reason why that presumption is inapplicable here; and in these circumstances refusing a new trial amounts to an abuse of discretion.”

Bray v. Planned Parenthood Columbia-Willamette, Inc., US 6th Cir. (3/21/14)
Civil Procedure, Communications Law, Constitutional Law

Bray is an antiabortion activist and wrote a book, A Time to Kill. In 1985, Bray was convicted for a felony relating to physical damage to abortion centers. He spent four years in prison. Planned Parenthood (PPCW) was a plaintiff in a 1995 suit against antiabortion activists (including Bray) for intimidation by threat of force under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248. In 2005, PPCW sought to collect its $850,000 judgment and obtained a writ of execution authorizing seizure of specified property. The Bray family filed a “Bivens” suit, claiming that U.S. Marshals conspired with PPCW to seize their property in an unconstitutional manner. The complaint alleged that during a “surprise raid” Bray was required to sit on his couch while flak-jacketed Marshals, advocates for political positions that Bray despised, plus unknown persons, seized the books, papers, computers and cameras, of Bray and his family, excepting only children’s books and Bibles. Bray was not allowed to leave the couch or to call his lawyer. Eventually a Marshal called Bray’s lawyer. The district court dismissed. The Sixth Circuit affirmed, noting that Bray had settled with all defendants, except the Marshals, who were entitled to qualified immunity in carrying out a presumptively valid federal court order, even by “highly questionable ways.” The unconstitutionality of certain actions was not then clearly established with sufficient specificity. If the alleged facts are true, the incident was “more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect” in the U.S., even if Bray’s ideas are “repugnant.”

Marvin M. Brandt Revocable Trust v. United States, United States Supreme Court (3/10/14)
Real Estate & Property Law, Transportation Law, Zoning, Planning & Land Use

The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. 934. One such right of way, created in 1908, crosses land that the government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights. A successor railroad abandoned the right of way with federal approval. The government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment. The district court quieted title in the government. The Tenth Circuit affirmed. The Supreme Court reversed. The right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that that the government had argued the opposite position in an earlier case. In that case, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest. An easement disappears when abandoned by its beneficiary.

Delaware Courts of Chancery appealed to the U.S. Supreme Court recently, seeking to validate a law that would allow them to hold confidential arbitration proceedings for parties with $1M litigation at stake. Professor Judith Resnik wrote about this in the NYT Op-Ed pages,  “Renting Judges for Secret Rulings.”

On appeal is the question whether this arbitration process, established by the Delaware Legislature and codified at Del. Code Ann. Tit. 10 § 349 violates the First Amendment’s right to public access for court proceedings.

The Delaware Legislature passed the law in 2009. It allows litigants with an amount in controversy over $1M to pay a $12,000 fee (and $6,000 per day) to conduct private arbitration in state courts, with a sitting state judge presiding over the proceedings. The verdict from this arbitration is final, as an enforceable judicial decision. The filings are not docketed, and the decisions are not published.

The Delaware Coalition for Open Government (DCOG) sued to have the law overturned after it was passed. The district court found that the law violated the First Amendment, and the U.S. Court of Appeals for the Third Circuit affirmed. The question presented in the petition writ for certiorari to the U.S. Supreme Court is whether under the “experience and logic” test, established by earlier SCOTUS cases, these cases may be held confidential, or closed to public access.