Russell G. Little, Attorney at Law

12/11/2020

The Supreme Court on Thursday evening declined to postpone the execution of Brandon Bernard, who was sentenced to death for his involvement in the carjacking and murder of two youth ministers, Todd and Stacie Bagley, in Fort Hood, Texas. The court’s three liberal justices publicly dissented from the decision to allow the execution to proceed.

Bernard, who had just turned 18 at the time of the crime in 1999, is the ninth person to be executed by the federal government since July, when the Trump administration lifted a 17-year moratorium on the federal death penalty.

Shortly after the Supreme Court denied his final appeal, Bernard was pronounced dead at 9:27 p.m. at the federal prison in Terre Haute, Indiana.

12/11/2020

At the Criminal Bar Christmas Party during normal times.

12/09/2020

Alito's Way - Law & Liberty

https://lawliberty.org/alitos-way/

Justice Samuel Alito's speech shows that originalism will be the parole of the Court going forward, and that Alito will be the originalist of tradition.

12/07/2020

The Supreme Court will hear five cases this week in what will be the court’s final oral arguments of 2020. In Monday’s session, the justices will hear two cases that were brought by Holocaust survivors and involve important issues of international law. The survivors — or their heirs — are seeking compensation for valuable art and other property that was seized by or sold to Germany and Hungary during the Holocaust. Federal Republic of Germany v. Philipp asks whether U.S. courts have jurisdiction to resolve claims arising from a foreign country’s alleged confiscation of property from its own nationals within its own borders. Both Germany and Republic of Hungary v. Simon ask whether U.S. courts can and should abstain from resolving such claims under the doctrine of “international comity.

12/04/2020

The justices will meet Friday for a private conference to consider which, if any, cases should be added to the court’s docket. Among the petitions slated to be discussed are a pair of consolidated cases on the legality of Medicaid work requirements, a challenge to a Kansas law that requires applicants to prove U.S. citizenship when registering to vote, and a lawsuit against President Donald Trump alleging that he violated the First Amendment when he blocked critics on Twitter.

12/02/2020

The Supreme Court heard oral argument on Tuesday in a pair of cases, Nestlé USA v. Doe I and Cargill, Inc. v. Doe I, that ask whether a lawsuit against American corporations under the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, can continue. The plaintiffs in the case are six former child slaves in Ivory Coast, who contend that the defendants, both U.S. food giants, facilitated human-rights abuses on the cocoa plantations where the youths worked. Although the Supreme Court in the past has indicated that the kinds of claims that can be brought under the ATS are relatively limited, after nearly 90 minutes of debate today several justices appeared reluctant to rule that U.S. corporations like Nestlé and Cargill can never be sued under the statute. At the same time, it seemed that the two companies might nonetheless eke out a narrow win in this case, as some justices appeared skeptical that the plaintiffs’ allegations were enough to allow the case to proceed.

11/30/2020

Van Buren v. United States gives the Supreme Court its first chance ever to interpret the Computer Fraud and Abuse Act, a federal statute that imposes civil and criminal liability for unauthorized access of computers. The case, which will be argued on Monday, presents a central question about the statute that has deeply divided lower courts: how the statute applies when an individual is authorized to obtain information from a computer for some purposes but not others.

Nathan Van Buren was a police officer in Georgia authorized to search computerized records about license plates for law-enforcement purposes. Falling for a sting conducted by the FBI, he searched those records for private purposes (at the request of an FBI informant who offered to pay him several thousand dollars for the information). The government charged Van Buren in federal district court with two counts of fraud: computer fraud under the CFAA and honest-services wire fraud under another statute. A jury convicted him of both counts. The U.S. Court of Appeals for the 11th Circuit vacated the wire-fraud conviction but upheld the conviction under the CFAA. Van Buren appealed to the Supreme Court last December.

11/26/2020

In a concurring opinion, Justice Neil M. Gorsuch said Mr. Cuomo had treated secular activities more favorably than religious ones.

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques,” Justice Gorsuch wrote.

The court’s order addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization and two individuals. The applications both said Mr. Cuomo’s restrictions violated constitutional protections for the free exercise of religion, and the one from the synagogues added that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

11/25/2020

Texans still can’t buy liquor in Walmart, after U.S. Supreme Court rejects bid

https://www.texastribune.org/2020/11/24/texas-walmart-liquor/

Texas is the only state that does not let publicly traded companies, like Walmart, sell liquor.

11/24/2020

Cuomo’s Pandemic Powers Might Be Tested in Supreme Court Case

https://www.wsj.com/articles/cuomos-pandemic-powers-might-be-tested-in-supreme-court-case-11606089600?st=ziuz1o3fj1l891a&reflink=article_copyURL_share

The U.S. High Court is expected this week to say whether it will hear a challenge to the coronavirus-related restrictions that New York’s governor placed on parts of Brooklyn in October.

11/21/2020

New York Gov. Andrew Cuomo urged the Supreme Court on Friday to stay out of the state’s battle with two Orthodox Jewish synagogues in New York City over an executive order that limits attendance at houses of worship as part of an effort to combat the coronavirus. Cuomo told the justices that because of “continued progress in containing COVID-19 spread,” the restrictions that the synagogues asked the court to block no longer apply to them.

11/20/2020

The Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July. Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.

In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution. There were no noted dissents to the three brief orders rejecting those requests.

Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana. He died at 11:47 p.m., according to local news reports.

11/20/2020

Pagel, Davis & Hill, P.C.

COVID has forced many businesses and its employees to operate out of residences. While Houston has no zoning, many smaller cities in Harris County do have ordinances regarding business activities in residential homes.

PDH Partner Corbett Parker outlined this issues utilizing Bellaire and West University's ordinances in this month Essential News Magazine.

11/19/2020

The court on Friday granted cert in last week’s single new relist, Cedar Point Nursery v. Hassid, 20-107, presenting the question whether a California regulation that allows union organizers to enter the property of growers constitutes an uncompensated per se taking of property under the Fifth Amendment.

11/17/2020

The Supreme Court on Monday afternoon rejected a request from two inmates at high risk for complications from COVID-19 to reinstate an order by a federal district court that would require Texas prison officials to take basic safety precautions to combat the virus. Justice Sonia Sotomayor dissented from that ruling, penning an 11-page opinion – joined by Justice Elena Kagan – in which she worried that Monday’s order “will lead to further, needless suffering” at a prison where 20 inmates have already died as a result of the virus.

The request was filed by Laddy Valentine and Richard King, inmates at the Wallace Pack Unit, a geriatric prison in southeast Texas. Valentine is 69, King is 73, and both suffer from chronic health conditions – such as diabetes and high blood pressure – that put them at a higher risk for serious illness and death from the coronavirus. They went to federal court earlier this year, where they argued that the failure to protect them from the coronavirus violated the Constitution’s ban on cruel and unusual punishment.

11/13/2020

The Roman Catholic Diocese of Brooklyn asked the Supreme Court on Thursday to block limits imposed on in-person church attendance because of the coronavirus pandemic. The plea renews a dispute over restrictions on worship services while some secular businesses remain open. The Supreme Court rebuffed similar challenges over the summer, but this is the first one to come to the justices since Justice Amy Coney Barrett’s confirmation last month, and the diocese could find more success before the now more conservative court.

The order at the center of Thursday’s filing, issued by New York Gov. Andrew Cuomo (D) in October, limits in-person attendance at church services to either 10 or 25 people, depending on the number of COVID-19 cases in the areas in which a particular church is located. As a practical matter, the diocese contends, the order “effectively bars in-person worship at affected churches – a ‘devastating’ and ‘spiritually harmful’ burden on the Catholic community.” By contrast, the diocese noted, many secular businesses, including “everything from supermarkets to pet stores,” are allowed to stay open.

The diocese went to federal district court in New York, where it argued that Cuomo’s order violates the Constitution’s free exercise clause. Both the district court and the U.S. Court of Appeals for the 2nd Circuit declined to block the limits, leading to Thursday’s appeal to the Supreme Court.

11/10/2020

It's ACB's Seat Now - Law & Liberty

https://lawliberty.org/podcast/its-acbs-seat-now/

John McGinnis discusses what newly appointed Justice Amy Coney Barrett will mean for the dynamics of the Supreme Court.

11/09/2020

On Tuesday at 10 a.m., the justices will hear oral argument in California v. Texas.

11/05/2020

Telling the court that “the vote in Pennsylvania may well determine the next President of the United States,” the campaign of President Donald Trump went to the Supreme Court on Wednesday afternoon. In a 10-page filing in Republican Party of Pennsylvania v. Boockvar, the president’s campaign asked to join the Pennsylvania Republican Party’s appeal of a ruling by the Pennsylvania Supreme Court that requires election officials to count mail-in ballots received by Nov. 6. The justices rejected a plea from the party to fast-track their challenge to that ruling last week, but an opinion from Justice Samuel Alito left open the possibility that the court could take up the dispute again.

Under the state supreme court’s ruling, which relied on a provision in the state constitution, all ballots received by Nov. 6 will be counted if they are postmarked by Election Day, Nov. 3, lack a postmark or have a postmark that is unclear. On Oct. 19, the justices turned down a request from the Pennsylvania Republicans to put that ruling on hold while the party appealed. Four of the court’s conservative justices – Alito and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – indicated that they would have blocked the state supreme court’s decision. Justice Amy Coney Barrett was not yet on the court at the time.

11/02/2020

The eyes of the Fifth Circuit are upon you
Posted on November 1, 2020
The University of Texas’s rules about campus speech did not fare well in Speech First, Inc. v. Fenves, in which the Fifth Circuit found that a preliminary-injunction action could proceed. The Court found that the case was not moot and stated a strong claim on the merits: “Of course, not every utterance is worth protecting under the First Amendment. In our current national condition, however, in which ‘institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,’ courts must be especially vigilant against assaults on speech in the Constitution’s care. Otherwise, the people may not be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences,’ to ‘transmit their resulting views and conclusions to their elected representatives,’ ‘to influence the public policy enacted by elected representatives,’ and thereby to realize the political and human common good.” No. 19-50529 (revised Oct. 30, 2020) (footnotes omitted).

10/28/2020

All of the States that are Waiving Live CLE Requirements due to the Coronavirus Pandemic

All of the States that are Waiving Live CLE Requirements due to the Coronavirus Pandemic

In response to the Coronavirus, states all over the country are waiving in-person CLE requirements. Here is a running list.

10/27/2020

In one of many recent election-law disputes, the panel majority in Richardson v. Hughs painstakingly reviewed, and rejected, the plaintiffs’ challenge to Texas’s practices about signature verification for mail-in ballots. The procedural posture was a motion to stay; a concurrence cautioned: “[T]he reality is that the ultimate legality of the present system cannot be settled by the federal courts at this juncture when voting is already underway, and any opinion on a motions panel is essentially written in sand with no precedential value ….” footnote omitted). No. 20-50774 (Oct. 20, 2020).

10/22/2020

Rethinking the Seattle "CHOP" Takings Case

https://reason.com/2020/10/21/rethinking-the-seattle-chop-takings-case/

Property owners are suing the city for helping far-left activists seize control of their property during the period when it allowed the latter to rule an "autonomous zone" covering 16 blocks of in the area.

10/21/2020

Ten years before Justice Antonin Scalia wrote the landmark Second Amendment opinion in District of Columbia v. Heller crystallizing the Constitution’s guarantee of the right to keep and bear arms as an individual right, he was welcoming a young clerk to chambers by the name of Amy Coney Barrett. There were no Second Amendment cases before the Supreme Court that term. In fact, before Heller, the court had not taken up a Second Amendment case since 1939 — and before then, only twice in history, both in the 19th century.

The court has decided three Second Amendment cases since Heller in 2008, and if Barrett takes the bench, it’s possible the court would be inclined to again revisit – and potentially further expand – gun rights. Some scholars say the former Scalia clerk may be willing to go to the right of her former boss on guns.

Conventional wisdom suggests that the four most conservative justices on the current bench – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – would like to take up more Second Amendment cases. Thomas, in particular, has written that the court gives short shrift to the Second Amendment when compared with other rights. And Kavanaugh wrote last term – in a concurrence to a 6-3 decision finding that a challenge to a New York City gun-safety law no longer presented a live case – that the court should take up another Second Amendment case “soon.”

10/13/2020

With most of the legal world focused on the Barrett hearings, the Supreme Court’s work continues with oral arguments in two more cases. Evan Lee previews United States v. Briggs, which involves the statute of limitations for prosecutions of rape committed by members of the military. And Danielle D’Onfro previews City of Chicago v. Fulton, a technical-sounding bankruptcy case that offers a view into punitive municipal fines and fees.

10/11/2020

This week we highlight cert petitions that ask the Supreme Court to decide, among other issues, which forensic analysts in a multi-analyst DNA-testing process a criminal defendant has the right to confront at trial and whether noncitizens who entered the United States without authorization but who later received Temporary Protected Status are eligible for lawful-permanent-resident status.

The Supreme Court in 2009’s Melendez-Diaz v. Massachusetts held that the Constitution’s confrontation clause prohibits prosecutors from introducing forensic reports into evidence without giving criminal defendants the chance to cross-examine the analysts who produced the reports. However, courts have struggled to articulate which analysts prosecutors must call to testify when multiple analysts participate in forensic testing. In Chavis v. Delaware, a jury convicted Dakai Chavis of burglary of an apartment on the basis of a DNA sample that police took from outside the bedroom window. At trial, an analyst who completed the final, but not initial, steps in analyzing the DNA sample from the apartment testified that the sample matched a reference sample of Chavis’ DNA. DNA testing typically involves six steps, and the testifying analyst did not observe or supervise the analysts who performed the earlier tasks. Determining that the absence of the other analysts did not violate the confrontation clause, the Delaware Supreme Court affirmed Chavis’ conviction. Chavis asks the justices to review the Delaware court’s decision.