#what is the meaning of writ of certiorari

[judgementstoday]

Why Law Students Should Keep An Eye On Supreme Court Verdicts

As a law student, there are many different kinds of sources that you rely on while researching your coursework - statutes, court cases, and even other bloggers and articles. But the one source that is the most intriguing and often the most overlooked is the Supreme Court. Though they only hear about eighty cases each year, these trials can impact our lives as Indians the most. This is why it's so important for law students to keep an eye on their Supreme Court judgements- and this article aims to show you how!

What are Supreme Court Verdicts?

The Supreme Court is the highest in the United States, and its decisions are binding on all other courts. The court hears cases on various topics, from criminal law to constitutional law.

Supreme Court cases that the Supreme Court hears are appeals from lower courts. That means the Supreme Court is not usually the first to hear a case; instead, it is the last court of appeal. In some cases, however, the Supreme Court may choose to hear a case directly from a trial court.

The justices of the Supreme Court are tasked with considering two main questions when they review a case: first, whether or not there is a federal issue at stake; and second, whether or not the lower court's decision was correct. If the answer to both questions is yes, then the Supreme Court will issue what is called a writ of certiorari, which orders the lower court to send up the records of the case for review.

Once a writ of certiorari has been issued, both sides in the case will submit written briefs outlining their arguments. The justices will then consider these arguments along with any oral arguments that are presented before them. After deliberation, they will issue a decision in writing called an opinion.

How do Supreme Court Verdicts Affect Law Students?

As a law student, keeping up with the Supreme Court decisions is essential, as they can significantly impact your future career. For example, if the court rules favour a particular interpretation of the law, it could set a precedent that all future lawyers must follow. Supreme Court rulings can also affect how law schools teach specific topics. For instance, if the court overturns a long-standing legal principle, law schools may need to adapt their curriculum to reflect this change. By staying up-to-date on the latest Supreme Court decisions, you can ensure that you get the best possible education and prepare yourself for a successful legal career. 

How to Look for News on Supreme Court Verdicts?

There are a few places to start when looking for news on Latest Supreme Court judgments. The first is the Supreme Court's website, which has a section dedicated to recent decisions. Another good resource is the website of the National Law Journal, which regularly covers Supreme Court cases and decisions. Finally, law students can stay up-to-date on Supreme Court verdicts by following legal news sources such as Judgements Today.

[ruminativerabbi]

The YU Pride Alliance

My mother was apparently correct when she told me that, if you try hard enough, you can learn something new every day of your life. Just the other day, for example, I learned what a writ of certiorari is: the order of a higher court to a lower court that it, the lower court, provide its record in a given case so that the higher court may review it. Apparently, this is a regular feature of life at the Supreme Court and, indeed, I also learned that the Supreme Court issues writs of certiorari to select most of the cases it hears. Who knew?

The context in which I learned about certiorari is what I’d like to write about this week because it was just a few days ago that the Becket Fund for Religious Liberty, a legal advocacy group that promotes the free exercise of religion,  filed an emergency application with the U.S. Supreme Court on behalf of Yeshiva University asking that it either issue a writ of certiorari and/or stay a ruling issued by the New York State Supreme Court last June instructing YU to treat the YU Pride Alliance, a group serving the LGBTQ+ community at Yeshiva, as any other student group, i.e., by providing it with funding and with an on-campus meeting place. YU’s argument that the ruling requires the school to go against its own religious principles and is thus a violation of its First Amendment rights sounds rational, at least at first, and that point was made forcefully.

It turns out, slightly amazingly, that Yeshiva specifically amended its charter in 1967 to describe itself, not as a religious institution at all, but rather specifically as an educational one. And that was the crucial detail that prompted the lower court’s ruling: although it is true that religious corporations, including ones “incorporated under the education law,” are exempt from compliance with the New York City human rights law, YU’s decision specifically not to describe itself as a religious institution means that that exclusion specifically does not apply to them. This, at least to me, is a mere detail: no one with even a passing acquaintanceship with Jewish life in the United States would seriously argue that YU is not a religious institution. Its name implies as much. It houses a rabbinical seminary that trains modern Orthodox rabbis and is widely regarded as the flagship institution of modern Orthodoxy in America. So let’s say that the New York court’s ruling turned on a detail that itself feels negligible and inconsonant with reality as we know it. What then? Should its ruling be overturned? Does a religious institution have the right to engage in overtly discriminatory practices if it finds justification for those practices in its traditions and traditional practices? May the government step in to protect citizens whose human rights are being violated even if the violation in question is being carried out by a religious institution? These are the questions that the whole kerfuffle about the YU Pride Alliance bring to my mind. And all of them circle around the single issue that churns and roils at the center of the matter: does the Constitution permit the government to determine what is and what isn’t legitimate religious practice protected by the First Amendment?

I broached this topic last October when I wrote about the case of John Henry Ramirez, a former Marine who murdered a convenience store worker in Corpus Christi, Texas, in 2004 and then fled to Mexico, where he was eventually apprehended four years later. He was tried for murder, convicted, and sentenced to death. As the date of his execution drew closer, he sued the State of Texas over the fact that the state was refusing to grant his minister, the Reverend Dana Moore of the Second Baptist Church in Corpus Christi, the right not only to be present at his execution but also to lay his hands on Ramirez’s head and to pray with him as he was going to be put to death. When I wrote last year about this case, it was still undecided. But it is undecided no longer: Ramirez won in court and Texas was ordered to permit Reverend Moore to serve his congregant in whatever way his religious training dictates. Ramirez’s execution is scheduled to take place on October 5 of this year and will presumably take place as he prays with his minister’s hands set upon his head.

When I wrote about the Ramirez case (click here), I argued that the key issue here is not whether the laying-on of hands is or isn’t a legitimate part of the Baptist last-rites ceremony, but rather whether the government should have a voice in the discussion at all. I argued, I hope persuasively, that it should not. In my opinion, I wrote, the First Amendment should be understood not only to guarantee freedom of religion in the philosophical sense but also in the practical, and that the government should therefore never be empowered to decide what does or doesn’t constitute “authentic” religious behavior. I’m willing to accept exceptions to that rule in the extreme case: if a fundamentalist group were to embrace the biblical institution of slavery and argue that the Thirteenth Amendment prohibiting slavery was a violation of their civil rights, I would certainly not be supportive of that argument. But the Ramirez case was nothing like that and simply involved the State of Texas attempting to tell a Christian minister what does and doesn’t constitute a “real” Christian ritual. That is not something any American should find rational or reasonable.

Just lately, the Supreme Court has issued several rulings that seem, at least to me, to thin the famous wall between Church and State that is so foundational to our American republic.

In Carson v. Makin, the Supreme Court determined that the State of Maine was acting illegally in refusing school vouchers to parents whose children attended religion-based private schools. The argument was simple: those parents pay taxes, their children attend the school of their choice, parents whose children attend “regular” private schools get government assistance, so why shouldn’t parents whose children attend parochial schools? That this decision eroded the barrier between church and state seems obvious. But the Court felt that the importance of not discriminating against citizens because of their religious affiliation was the greater good. I feel conflicted about the decision. On the one hand, I certainly understand how helpful that kind of assistance could be for Jewish parents who send their children to day schools. But, on the other, feeling that no ultimate good can ever come—not for Jews and not for anyone—from eroding what was once considered the impermeable wall between Church and State. But especially not for Jews and other members of minority faiths!

In Kennedy v. Bremerton School District, the Supreme Court considered the case of a school district in Washington that fired a local football coach after he refused to abandon his practice of kneeling down in prayer at the end of every game and allowing students, if they wished, to join him. (Left unreported was whether he prayed after every game or only if his team won.) The school board felt that, since Coach Kennedy only engaged in Christian prayer, this practice was an offense against the Establishment Clause that forbids the government—in this case, a state-run public school—from endorsing one specific religion over any other. The Supreme Court felt otherwise, decreeing that the School District was wrong in, in effect, denying Coach Kennedy his right to speak freely. About this too, I have mixed emotions. Certainly, the coach’s practice must have appeared to most, or at least to some, to be a kind of official endorsement specifically of Christian prayer as opposed to the prayers of any other faith group. On the other hand, the notion that any citizen’s right to engage in prayer can or should be limited by governmental restrictions on religious activity in public places seems wrong to me. So here too I sit on both sides of the fence, wanting the wall between Church and State to be ironclad, but also wanting the government to keep its hands off religion entirely…and certainly not to dictate where and when individuals can say their prayers.

And that brings us back to the YU Pride Alliance. Should an American university—regardless of how it self-defines in terms of its theological or philosophical orientation—be permitted to engage in discriminatory practices against recognized groups that would be unequivocally illegal if that discrimination were to take place, say, in the workplace or in a public school? Or is the greater good served here by the government being prohibited from interfering in the behavior of religious institutions regardless of whether that involves behavior that would otherwise be illegal? (I reject as ridiculous the argument that Yeshiva University is not an Orthodox Jewish institution.) Is the greater good served here by allowing YU to sneer openly and, in my opinion, embarrassingly and unjustifiably prejudicially at its gay students if that is the price we must pay for religious institutions not having to answer to the government for their practices or standards? Or has society long since turned that corner with respect to the respect due gay people? We certainly wouldn’t tolerate the government looking away if a school, even a religious one, were to forbid its Black students or its Hispanic or Jewish ones to form affinity groups promoting their culture or history! To ask the question differently: is this really about the place of gay people in America or is really about the willingness of the government to regulate religion? In a sense, it’s about both.

In the end, I think the Supreme Court will probably endorse Yeshiva’s right to discriminate against its own gay students. But in such an instance, the challenge will then pass to the Jewish community itself: whether the government can or should regular religious institutions at all is one thing, after all, but it is another thing entirely to ask if the Jewish world will just shrug its shoulders and hope the issue just goes away…or stand up to speak with a united voice against YU’s misguided and unjustified decision to disenfranchise its own gay students for the sake of some unspecified religious principle. I suppose they must have one. But the one I suggest they adopt in its place come precisely from last week’s Torah portion: tzedek tzedek tirdof, Scripture enjoins the faithful: never ever tire in the pursuit of justice for all.

[newjerseyprelawland-blog]

303 Creative LLC V. Elenis: When Public Accommodations And Speech Intersect

By Emily Gill, Rutgers University–New Brunswick Class of 2026

December 11, 2022

In 2012, Lorie Smith, a Colorado resident, started her website design company, 303 Creative, where she offers custom design services to various clients, from roofing companies to state senators [1]. Ms. Smith wanted to expand her services to include wedding websites, which she would only have available to heterosexual couples due to her religious beliefs. She planned to put a statement explaining that on her website; however, under the Colorado Anti-Discrimination Act (CADA), she was not allowed to do this, as the statute prohibits public accommodations from discriminating against individuals based on protected characteristics [2]. Ms. Smith filed her initial complaint against Aubrey Elenis, the Colorado Civil Rights Division Director, in 2016, stating that her First Amendment rights were violated as she was compelled to speak a message she morally objected to. At both the district court level and appellate court level, it was decided that the CADA's prohibition of discrimination was, in fact, constitutional [3]. In mid-2021, the plaintiffs petitioned for a writ of certiorari, which the supreme court granted in February 2022.

The supreme court heard the oral argument on December 5, 2022, where it was asked if the compulsion of an artist to speak or stay silent due to the CADA violated the Free Speech Clause of the First Amendment. First, the Court heard the argument of the petitioner, who was represented by Kristen Kellie Waggoner, the CEO, President, and General Counsel of the Christian-oriented organization Alliance Defending Freedom. 303 Creative is considered a public accommodation under the CADA, which is why it was prohibited from creating wedding websites that discriminate against same-sex couples. Waggoner argues that if Ms. Smith is forced to create wedding websites for same-sex couples, she is being compelled by the government to endorse these unions, which directly violates the First Amendment. Justice Sonia Sotomayor raised the point that a wedding website is not an endorsement of a union, but an announcement, meaning the government is not compelling her to make a statement she disagrees with [4]. Waggoner's other key point is that message outweighs status. She gave the example of the websites of a heterosexual couple and a same-sex couple, both having the sentence "God bless this marriage," and argued that the context gives the line different meanings [5].

If 303 Creative was to sell the same product to a same-sex couple that it sold to a heterosexual couple, the message it would be sending would be very different and thus be forcing Smith to express an idea she disagrees with. She finished her argument by stating that "when there's an overlap between message and status, message does win." Second, the Court heard the argument of the respondent, who was represented by Eric R. Olson, the Solicitor General of Colorado. His argument focused primarily on the existence of 303 Creative as a public accommodation to explain why their discrimination was prohibited. As a public accommodation, "The company can choose to sell websites that only feature biblical quotes describing a marriage as between a man and a woman... [but] company just cannot refuse to serve gay couples, as it seeks to do here." [6] Justice Clarence Thomas raised the question of what happens in the intersections of public accommodation and speech or expression, to which Olson responded that there is no framework stating that businesses "except those engaged in expressive conduct" cannot discriminate.

Essentially, Ms. Smith can say on her website that marriage is only between a man and a woman, but she cannot refuse to sell these websites to same-sex couples. Lastly, the Court heard an amicus curiae in support of the respondent, Brian H. Fletcher, the former Solicitor General of the United States. Fletcher's argument revolved primarily around the fact that 303 Creative is a public accommodation and that this was status-based discrimination. He states that in Masterpiece Cakeshop v. Colorado Civil Rights Commission, "the Court… said refusing to serve for same-sex marriages is discrimination against…gays and lesbians because status and conduct is inextricably intertwined." [7] He also stated that the Court has upheld the government compulsion of speech in the past, such as in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. In Rumsfeld, law schools were forced to communicate military announcements and the location of military recruiters, even though they had sincere beliefs against it [8]. Fletcher argues that Rumsfeld is very similar to this case and that Ms. Smith should therefore be required to communicate the message (the announcement of same-sex marriages) even if she has objections. The decision of this case will most likely not be announced until sometime in 2023, but the outcome will be significant. If decided in favor of 303 Creative LLC, similar arguments may be used to justify discrimination against people of color or individuals with disabilities, which would be detrimental to the lives of many Americans.

______________________________________________________________

[1] Smith, Lorie. “Portfolio.” portfolio - 303 Creative, 2022. https://303creative.com/portfolio/.

[2] "303 Creative LLC v. Elenis." Oyez. Accessed December 5, 2022. https://www.oyez.org/cases/2022/21-476.

[3] “303 Creative V. Elenis.” 303 Creative LLC v. Elenis | Alliance Defending Freedom, 2022. https://adflegal.org/case/303-creative-v-elenis.

[4] "303 Creative LLC v. Elenis." Oyez. Accessed December 5, 2022. https://www.oyez.org/cases/2022/21-476.

[5] "303 Creative LLC v. Elenis." Oyez. Accessed December 5, 2022. https://www.oyez.org/cases/2022/21-476.

[6] "303 Creative LLC v. Elenis." Oyez. Accessed December 5, 2022. https://www.oyez.org/cases/2022/21-476.

[7] "303 Creative LLC v. Elenis." Oyez. Accessed December 5, 2022. https://www.oyez.org/cases/2022/21-476.

[8] "Rumsfeld v. Forum for Academic and Institutional Rights, Inc." Oyez. Accessed December 8, 2022. https://www.oyez.org/cases/2005/04-1152

[ledxlaw]

HOW TO FILE A WRIT PETITION IN INDIAN COURTS?

In Indian Constitution, fundamental rights are given to the citizens of the country. Fundamental rights are the most crucial for the development of the people of India. Part III of the Indian Constitution includes the fundamental rights of people like the right to speech, right to equality, right to freedom etc. Solely stating these rights in the constitution and giving these rights to the people is not enough. These rights should be protected also. For the protection of these fundamental rights, Article 32 and Article 226 of the Indian Constitution give remedies. Article 32 and Article 226 of the Indian Constitution give the right to approach the Supreme Court and High Court. This right can be practised by anyone whose rights are violated. There are many writs provided under the Indian Constitution which protect the fundamental rights of the citizens of the country. Many online law certification courses are available on the Writs provided under the Constitution of India which protects the rights of people. 

What is a Writ? 

Writ refers to an order which is issued by the authority. The writ is understood as a formal written order which is issued by the court having the authority to do so. 

A writ petition is an application which is to be filed before a court asking for the issue of the writ in a case where the fundamental rights of citizens are violated. 

Types of Writs - 

In Indian Constitution, Article 32 and Article 226 deal with the issue of writs. There are 5 types of writ provided under the Constitution which have different meanings and applications. These 5 types of the writ are: 

Habeas Corpus: This writ means ‘you may have the body of’. This writ is applied in those cases where the person is detained illegally. The court uses this writ and directs the person to court for checking the legality of his custody. This writ can be issued by the courts in the following circumstances: 

When a person is taken into custody but is not presented in court within 24 hours of his arrest. 

When a person is detained even when the person has not breached the law. 

When a person is arrested with a deceitful purpose. 

Mandamus: This refers to ‘we command’. It is a command which is given to a person who is working as a public servant and who has not fulfilled his duty. This command is given by the courts. This writ can be issued against a person, corporation, an inferior court or any government body for the same cause i.e. when they fail to perform their duties. 

Certiorari: The term certiorari refers to ‘certified to be informed.’ This writ is issued by the superior court to an inferior court for passing the pending case to a higher court or giving the judgment soon. In 1991, the apex court which is the supreme court ruled that this writ can be issued against authorities also if their judgment is violating the rights of the people. This writ can be issued in the following cases:

There should be a court that has the authority or right to act judicially. 

If the judgment of a lower court violates the law. 

If the judgement given by an inferior court contains some error. 

Prohibition: The Writ of prohibition means to hinder or to discontinue and it is popularly recognized as ‘Stay Order’. This writ is issued when a lower court or a body tries to disobey the limits or powers vested in it. The writ of prohibition is given by any High Court or Supreme Court to any lower court, or semi-legal body prohibiting the latter from continuing the procedures in a specific case, where it has no jurisdiction to try.  It cannot be imposed against administrative organisations, statutory authorities, or private people or enterprises. It is solely applicable to legal and semi-legal bodies. 

Quo Warranto: This term Quo warranto means ‘by what authority or by what warrant’. It is issued by the court for the purpose of knowing the legitimacy or under what power the person is holding an office. It helps to prevent the unlawful holding of office by any individual. This writ cannot be issued under the following situations: 

To remove any minister from his authority.

It cannot be issued against the chief minister for non-performance of his duties. 

In the case of a ministerial office or private office. 

How to File a Writ Petition?

For filing a writ petition in any of the courts, a proper procedure should be followed. Firstly, the party who needs to file this writ needs to approach an organisation with identity proof, residential proof and all the other necessary documents and proofs. Then the advocate will draft a petition which will include all the details and facts of the case about how the rights were violated. After this, the draft is sent to the court and the person gets a date for the hearing on which courts accept the petition and send the notice to the other party. Then a date is given on which both the parties should compulsorily be present in court. The judge hears both sides of the case and then passes a judgement. This procedure should be followed to file a writ petition. Various Online law certification courses are there by which experts give the knowledge about all these things and law aspirants could learn better. 

Conclusion -   Many rights are provided to the citizens under Indian Constitution but the most important rights are fundamental rights which are provided under Article 19 of the Indian Constitution like the right to equality, right to freedom, right to speech etc. These rights are so crucial for the people of India and as these rights are available so their violation is also possible. So to protect the fundamental rights of people writs are there in Article 32 and Article 226. There are 5 types of writs in our constitution which can be filed in the High Court or Supreme Court for the violation of the Fundamental Rights of the people. Various Online legal courses are being provided nowadays which help law students to understand the concept of writs and the process of how these writs are filed in the courts.

[news4dzhozhar]

Attorneys for Boston Marathon bomber get 10 extra days to respond to government request for SCOTUS review of ruling tossing death penalty - The Boston Globe

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev on Tuesday were granted 10 extra days to respond to the government’s request to have the Supreme Court review an appellate ruling that vacated his death sentence.

The extension means lawyers for Tsarnaev, 27, now have until Dec. 17 to file their response to the government’s request, known as a petition for a writ of certiorari, legal filings show.

Tsarnaev’s team had sought to push the deadline back to Jan. 6.

If the Supreme Court agrees to take up the matter, it could reinstate Tsarnaev’s death sentence or affirm the July appeals court ruling that tossed it. Either way, Tsarnaev will remain behind bars for life, court records show.

The potential showdown before the high court comes after the US Court of Appeals for the First Circuit ruled that Tsarnaev’s entitled to a re-trial for the penalty phase only, citing factors including revelations that two of the 12 jurors didn’t fully disclose what they knew about the case, or discussed it on social media before they were chosen to decide Tsarnaev’s fate.

He was convicted in 2015 and sentenced to death for his role in the April 15, 2013 bombings, which killed three people including an 8-year-old boy and wounded hundreds more people. Tsarnaev and his older brother, Tamerlan, also killed an MIT police officer while they were on the run. Tamerlan Tsarnaev died in a confrontation with police in Watertown days after the blasts.

Dzhokhar Tsarnaev is currently incarcerated at a federal supermax prison in Colorado.

[2020acwg]

RECAP: Robin Wall Kimmerer, “The Sacred and the Superfund”

In this chapter of Braiding Sweetgrass, Robin Wall Kimmerer examines Lake Onondaga’s history of cultural importance to the Onondaga People and it’s status as a contested geographic site. Since 1788, New York State has stolen 2.5 million acres of land from the Onondaga Nation and subsequently leased land rights to corporate mining operations and chemical manufacturers. As a result, there are 48 different contaminants, including high volumes of mercury,  in the water, sediment, soil, plants, and fish of Onondaga Lake, which is commonly referred to as the most polluted lake in the country. The Onondaga Nation filed a land rights action in the United States District Court on March 11, 2005, which the federal court dismissed. The Nation then appealed to the Second Circuit Court of Appeals, which affirmed that dismissal. Finally, the Nation filed a petition for a writ of certiorari with the Supreme Court seeking review of the dismissal and its affirmance. The Supreme Court denied that petition. Despite numerous legal setbacks, Kimmerer notes that the “Onondaga have not turned their backs on the lake.” A Native nation that has never ceded its status as a sovereign nation, they did not call their suit a land claim but rather a land rights action to underscore their moral position and root the action in principles of care that extend to the natural world and future generations. In the face of blind injustice and constantly receding hope, she offers the idea of restoration as a pathway forward, saying: “Despair is paralysis. It robs us of agency. It blinds us to our own power and the power of the earth. Environmental despair is a poison every bit as destructive as the methylated mercury in the bottom of Onondaga Lake...Restoration is a powerful antidote to despair. Restoration offers concrete means by which humans can once again enter into positive, creative relationship with the more-than-human world, meeting responsibilities that are simultaneously material and spiritual. It’s not enough to grieve. It’s not enough to just stop doing bad things.” Kimmerer affirms her position that the act of building restorative, reciprocal relationships is the antidote to despair by quoting philosopher Joanna Macy: “...the relationship between self and the world is reciprocal, it is not a question of first getting enlightened or saved and then acting. As we work to heal the earth, the earth heals us.” She closes the chapter by walking us through multiple paradigms that can help us consider our individual relationships to the more-than-human world around us more thoughtfully. How we approach land (site) restoration depends wholly on what we believe “land” means. (1) Land as Capital (2) Land as Property (3) Land as Machine (4) Land as Teacher, Land as Healer (5) Land as Responsibility (6) Land as Sacred, Land as Community (7) Land as Home.

[alabamaprelawland-blog]

A Fifteen Year Old’s Crime And The Eighth Amendment

By Christopher Alhorn, The University of Alabama in Huntsville Class of 2021

May 13, 2021

It was August 9, 2004 [1]. Fifteen-year-old Brett Jones was fighting with his grandfather. The two men were in an angry argument because Brett’s grandfather had found Brett in his room with his girlfriend earlier that day. The encounter caused both men to be on edge. Brett was staying with grandfather to get away from his troubled household. Both his mother and his father were often intoxicated. The alcoholism sometimes caused his father to be abusive. Staying with his grandfather had allowed Brett to get away from the instability of his immediate family for the previous two months. This day, Brett’s relationship with his sixty-seven-year-old grandfather was also deteriorating. Brett was trying make himself a sandwich as he shouted and argued with his grandfather. As the argument grew more heated, he and his grandfather began shoving each other. Brett grabbed the knife he had been using to make his sandwich and stabbed his grandfather eight times [1]. Horrified and scared, Brett hid the body in a utility room and ran from the house [2].

The Mississippi police quickly caught up with Brett, arresting him the same day [3]. Within a year, he was put on trial for the murder of his grandfather. Brett tried to argue that he had acted in self-defense and his grandfather had been angry at him over frustrations with his family rather than the incident with his girlfriend [2]. The jury didn’t buy the argument. The jury convicted Brett of murder. Following Mississippi state law, the judge sentenced Brett to life in prison without any chance of parole.

Brett would almost certainly have stayed in jail for the rest of his life with no hope of getting out if the Supreme Court had not released a landmark opinion in 2012. In Miller v. Alabama, the Supreme Court ruled that sentencing a child convicted of murder to life in prison is a cruel and unusual punishment, which the Eighth Amendment forbids [4]. An exception to the rule occurs when the child is “permanently incorrigible.” Legal analysts debate exactly what this term means, but it carries the idea that a child cannot be reformed. After Miller v. Alabama was decided, Brett asked the Mississippi courts to reconsider his sentence. The Mississippi Supreme Court agreed with Brett and decided that the courts had to hear the case again in light of the new interpretation of the Eighth Amendment. In 2015, the Lee County Circuit Court heard the case again, but came to the same conclusion. Brett would stay in jail without a chance of parole [3]. Desperate to have a chance to get out of jail, Brett appealed his case all the way to the Mississippi Supreme Court, which came to the same conclusion as each of the lower courts. However, four of the justices on the court argued that the Supreme Court’s new interpretation of the Eighth Amendment required that Brett be given a chance of parole. Appealing to the Supreme Court, Brett argued that his sentencing was a violation of the Eighth Amendment as the Supreme Court had interpreted it in Miller. The Supreme Court decided to consider the case in March of 2020 [5]. That decision was released last week.

In a heated 6-3 decision, the Supreme Court decided against Jones [6]. The Supreme Court ruled that the Eighth Amendment does allow a judge to sentence a child to life in prison even if they are not “permanently incorrigible.” State laws still have to allow judges the option not to sentence children to life in prison without parole, but judges can sentence children to life without parole even if they find the child can be reformed [6]. Writing for the majority, Justice Kavanaugh framed the decision as consistent with precedent, suggesting that Miller never required the courts to find a child “permanently incorrigible” before they could be sentenced to life without parole. The dissenting justices loudly disagreed. Justice Sotomayor blasted the majority opinion as disrespectful of precedent writing, “Today, the Court guts Miller v. Alabama…” [6] Justice Sotomayor also disagreed with Justice Kavanaugh on whether Miller v. Alabama meaning. Sotomayor argued that Miller v. Alabama did in fact require courts to find a child “permanently incorrigible” before they could be sentenced to life without parole. Controversial but concrete, the majority’s opinion will have definite consequences.

Now that children can be sentenced to life in prison in more situations, more children will likely receive that sentence. Life sentences without parole for children remains legal in twenty-five states, mostly in the South and Midwest. Those states will likely see an increase in children who receive the harsh punishment. Legislators will continue to debate the merits of such sentences, but because of Jones v. Mississippi, the possibility of such sentences is wide open. A crime committed by a fifteen-year-old has created an important impact on Eighth Amendment law.

______________________________________________________________

1. Howard, J. Green, J. T. Shapiro, D. M. (n.d.). Petition for a writ of certiorari. https://www.supremecourt.gov/DocketPDF/18/18-1259/94684/20190329124507004_No.-__%20Cert%20Petition.pdf

2. Faulkner, L. (2005, May 21). Brett Jones found guilty of murder. Daily Journal. https://www.djournal.com/news/brett-jones-found-guilty-of-murder/article_d0a763e7-6407-5ee0-859a-6af91cda6811.html

3. Liptak, A. (2020, March 9). Supreme Court to Consider When Juveniles May Get Life Without Parole. New York Times. https://www.nytimes.com/2020/03/09/us/politics/supreme-court-teenagers-life-sentence.html

4. Miller v. Alabama. (n.d.). Oyez. Retrieved October 10, 2020, from https://www.oyez.org/cases/2011/10-9646

5. Jones v. Mississippi. SCOTUSblog. Retrieved October 10, 2020, from https://www.scotusblog.com/case-files/cases/jones-v-mississippi/

6. Jones v. Mississippi. 200 U.S. 321, 337. (2021). https://www.supremecourt.gov/opinions/20pdf/18-1259_8njq.pdf

[ledxlaw]

Types of Writs In the Indian Constitution

Writs a word no one can be unfamiliar with, especially a law student. This word holds a lot of importance and power. Legal professionals in the field of civil law, criminal law, or any other legal field must come across these writs and cases related to them at least once in their whole career. It is necessary for law aspirants to know what they are, how many types of writs are there in the Indian constitution and when they are used, all these are a little difficult to grasp at once that’s why many online legal courses make sure to teach or mention writs in lectures once in a while. So, What are writs? A writ is a legal order to do or not do something issued by the court of law or in simple terms, the writ means an order, given by the authority. 

In the Indian, Constitution writs mean, “ Writs are the written order from the Supreme court or High Courts that commands constitutional remedies for the Indian constitution against any kind of violation of their fundamental rights.” This order can be given to any individual, organization or state, that has violated the fundamental rights of a citizen. The power to issue Writs is considered the most important tool which is given to the Courts by the Indian constitution. This makes them, very essential part of the Indian judiciary system.  

Writs in Indian constitution:

Article 32 (i.e, according to Article 32, an individual can move to the supreme court of India when their fundamental rights are being violated or destitute and the Supreme court has the power to issue directions and orders or writs for the enforcement of the Fundamental Rights) and Article 226( This article confers power to High Court to issue writs to any person or authority within their jurisdiction for the enforcement of the fundamental rights or any legal rights) of the Indian constitution, gives power to the Supreme Court and High Court of India to issue writs. Article 32 is a fundamental right ( Right to Constitutional Remedies) which makes it unrefutable and absolute.

About Writs Petition:

A writ petition can be filed by any individual, whose Fundamental rights have been violated or are being deprived of their rights by the state or an individual. This petition can be filed either in High Court or Supreme Court. There is a  complete procedure for filing this petition with required documents and requires a legal professional for the process of petition filling. Thus every legal writ petition requires a legal professional with complete knowledge and experience in this aspect, that’s why many law aspirants opt for online legal certification courses to learn about this process from top legal industry experts.

Types of Writs In Indian Constitution: 

The constitution of India provides five types of writs which can be issued by the court, they are as follows;

Habeas Corpus

Mandamus

Prohibition

Certiorari

Quo-Warranto

Habeas Corpus:

Writ Habeas Corpus is the translation of Latin words “To find the Body of” or “You(shall) have the body”. This kind of writ is issued by the court, to order an individual, an authority or a police department to produce a body or present physically the person who is illegally detained in front of the court. The writ Habeas Corpus is used in the enforcement of the fundamental right of liberty of an individual against detention. The petition of this type of writ can be filed in the Supreme court or High court by the public, relatives or friends of the person who is alleged, to be in illegal detention. But this writ is not applicable if the detention is lawful, and is for contempt of Court.

Mandamus:

Indian Constitution provides another writ jurisdiction “Mandamus” which in Latin means “We Command”. This writ is issued by the court to an authority to perform the public duty which they are bound to perform but refused or failed to do so. This writ can be issued to a public individual, public authority, public body, lower courts or government tribunals. This writ can only be passed when a public authority denies performing its duty when asked by the petitioner. But this writ can not be issued when the duty was optional, not mandatory or against the Chief Justice of India, or any private individual or organization.

Certiorari:

The meaning of the writ Certiorari is “to be certified” or “to be informed”. This writ is issued by the Higher court to the lower court against the order passed by them in cases, and also to direct them to pass the pending case to the higher court. This writ is passed rarely and issued only when the Higher court feels that the tribunal court or lower court has passed a judgement or taken a case which is beyond their power or jurisdiction. Before this writ is issued only to judicial courts and quasi-judicial courts. After 1991, this writ can be issued to both the judicial and administrative systems. This writ can be issued only after the judgement is passed.

Prohibition:

As the word suggests itself, the meaning of the writ of Prohibition is “to forbid”. The Higher court(such as the Supreme court and High Court) issues the writ of prohibition to the lower courts or quasi or tribunal judicial bodies when this court tries to cross their power or jurisdiction limit. The prohibition writ cannot be issued against any public or private individual, authorities or bodies. 

Quo-Warranto:

The term of writ Quo-Warranto means “by what warrant. This writ issued is issued, to an individual holding a public office or issued by the court to the public official asking them by which authority did they hold the public offices. This writ also reviews the action of administrative authorities who make appointments to the public offices. This writ is applicable to only public offices and not to a private individual or organization.

Conclusion:

These are the 5 writs i.e, Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto of the Indian Constitution. The most widely issued writ is Mandamus, the other rest. These writs are said to be taken from British law in old times. For every citizen of India, it is necessary to know all these writs and situations and the requirements for filing them. Also, every law aspirant must be versed in these writs, as it will help them in their career. Many online legal learning platforms provide information about the writs of the Indian constitution through online law certification courses in India. The violation of Fundamental rights is a crime and these writs are protection given by the framers of the Indian Constitution to their country’s citizen's most basic rights.

[districofcolumbiaprelawland-blog]

How The Supreme Court Decides What Cases To Hear

By Trevor Haefner, The George Washington University, Class of 2020

September 25, 2020

The passing of Associate Justice Ruth Bader Ginsburg is a national tragedy, and her legacy of fighting for women's rights will not be forgotten. Her vacancy has provided President Trump with the opportunity to fill the position with a new justice. The process is sure to be tumultuous as an election is looming in the near future. This article will not focus on the process of nominating and appointing a new justice. Instead, this article will focus on the aftermath of an appointment. More specifically, how the Supreme Court decides what cases to hear. The nomination of new justice has created tension between both sides of the aisle, but it is crucial to remember that any conservative or liberal decisions made by the Court first require agenda setting. This means that it does not only matter how a justice would decide on a particular case but how cases are brought to the Court in the first place.

First, the Constitution gives the Supreme Court original jurisdiction which means it is responsible for all cases affecting ambassadors, and other public ministers and consuls. Also, controversies between states or between state(s) and the federal government will be brought to the highest Court in the land, unless extenuating circumstances exist. These types of cases make up an insignificant amount of the total petitions brought to the Court, as usually only five are filed during one term [1]. Original jurisdiction is relatively simple to understand because the Constitution outlines the Court's role. It is explaining how the thousands of other cases that are delivered the Court get chosen that is quite difficult.

Each year the Court receives around 10,000 petitions each year [2]. This exceedingly high volume for only nine people to deliberate on almost sounds absurd, but each justice is allowed to have four law clerks [3]. Clerks, as well as staff members of in office of the Supreme Court, act as an initial filter for the myriad of cases. An overlooked but important part of submitting a petition to the Court is formatting. The briefs are required to "prepared in a 6⅛-by-9¼-inch booklet, . . . typeset in a Century family 12-point type with 2-point or more leading between lines," [4]. Fortunately, exceptions to this rule are permitted if a party is unable to pay for the fees of preparing a brief. Forma pauperis briefs have looser restrictions and allow people in need to submit briefs on 8½-by-11-inch paper. The Court seems to be most concerned with the legibility of the documents [5]. As clerks overview petitions, the ones they deem important are given an identification number known as a "docket number" and provides each justice a copy of the memo. Currently, all of the justices, except Samuel Alito and Neil Gorsuch, use the "certiorari pool system." In this system, clerks from the different chambers work together by reading and then writing memos on the petitions. Justices also enjoy hearing feedback from their clerks to help them determine what cases should be deliberated by the Court [6]

Another gatekeeper in the process of choosing cases comes from the chief justice. Before the justices' meeting, where they decided what cases to hear, the chief justice creates a "discuss list" containing cases that he believes the Court should examine. In order of seniority, any justice may add cases to this list but no cases can be removed from the list. This eliminates a large swath of cases, less than a third of all the cases make it to the list [7]. Although there is no published record of these meetings, sources have a general understanding of the process. In the meeting, the chief justice usually presents the facts of a petition and states what his vote would be, then the associate justices provide their insight. It is tradition for the Court to adhere to the "Rule of Four" [8]. This rule grants writ of certiorari if four out of the nine justices feel the case has merit. A writ of certiorari is a legal order from a high court for a lower court to send the records of the case to them for review. Once this process is complete the Court will hear anywhere from 75-85 cases during one term [9].

Now that the process of deciding cases has been explained, it still leaves the question of what factors sway justices to pick certain cases. An important factor is justiciability which means that the case needs to be appropriate for the Court to hear. Cases that are moot, advisory, ask political questions, or do not contain an actual controversy are the least likely to be heard [10]. Rule 10, created by the Court, brings attention to resolving conflicts in lower courts. If federal courts have differing opinions or if state courts rulings clash with federal courts, they are extremely likely to be heard [11]. Elite lawyers also have a high chance of their cases being accepted. The U.S. solicitor general, who represents the U.S. government, has about 70 to 80 percent of his or her petitions heard [12]. This is because solicitor generals are closely involved in Supreme Court litigation; therefore, they have in-depth knowledge of the Court that other litigators do not. Other elite lawyers who work with the solicitor general are also more likely to have their cases heard. All lawyers, no matter what status, can increase their chances of having their submission decided by the Court if they file an amicus brief, "friend of the court" [13]. This increases the justices' interest because writing on the behalf of interest groups or third parties infer that the case will apply to a large group of people. This is also because it is uncommon for a petition to be accompanied by amicus briefs, less than 10 percent of petitions contain one [14]. The rarity of these accompanying briefs peaks the justices' curiosity.

Finally, research demonstrates that justices are aware of their political tendencies and what cases they hear are connected to their political ideologies. For example, under Chief Justice Earl Warren's Court, it was more likely for the justices to hear cases where lower courts gave conservative decisions because of his liberal viewpoint. On the other side, Chief Justice Warren Burger's Court took liberal decisions and made an effort to reserve those results [15]. Overall, the decision-making process the Supreme Court utilizes to accept petitions is shrouded in some mystery as their meetings are not subject to public record. The accessible scholarship has revealed a significant amount of information that allows followers of the Court to better understand how they function.

________________________________________________________________

[1] Supreme Court Historical Society. (n.d.). Retrieved September 24, 2020, fromhttps://supremecourthistory.org/htcw_casesthecourthears.html.

[2] The U.S. Supreme Court. (n.d.). Retrieved September 24, 2020, from             https://judiciallearningcenter.org/the-us-supreme-court/.

[3] Epstein, L., & Walker, T. G. (2020). Constitutional law for a changing America: Institutional    powers and constraints (10th ed.). Thousand Oaks, CA: CQ Press.             doi:https://bookshelf.vitalsource.com/#/books/9781544317922/.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] The U.S. Supreme Court. (n.d.). Retrieved September 24, 2020, from             https://judiciallearningcenter.org/the-us-supreme-court/.

[10] Epstein, L., & Walker, T. G. (2020). Constitutional law for a changing America:             Institutional powers and constraints (10th ed.). Thousand Oaks, CA: CQ Press.             doi:https://bookshelf.vitalsource.com/#/books/9781544317922/.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[supremekalmllc]

New Post has been published on https://supremekalm.com/does-the-fair-labor-standards-act-apply-to-cannabisbusinesses-the-u-s-supreme-court-may-decide/

Does the Fair Labor Standards Act Apply to Cannabis Businesses? The U.S. Supreme Court May Decide

Cannabis isn’t federally legal. Companies who operate in the cannabis space really only have the protection of the state’s laws in which they operate. Even full compliance with state laws is no shield to federal penalties or enforcement. Also, there is always a risk that cannabis contracts may not be upheld in court because they involve a federally illegal substance. For these reasons, we see a lot of really strange things in cannabis law that don’t really happen anywhere else. I wrote about this late last year. See here.

One of the things that prompted my last post was the federal appellate court decision before the Tenth Circuit Court of Appeals in Kenney v. Helix TCS, Inc. For a full summary of that case, you can read our post here. For a cliff’s note version:

Helix TCS, INC. (“Helixâ€) provides security services to cannabis businesses. Kenney, an employee of Helix, was classified as an exempt employee, meaning Helix did not pay him overtime pursuant to the requirements of the FLSA. Kenney brought suit against Helix claiming he was misclassified as exempt and should have been paid overtime.

Helix moved to dismiss the case, arguing that Kenney was not entitled to the protections of the FLSA because cannabis was entirely forbidden under the CSA. The district court denied the motion to dismiss but certified the ruling for immediate appeal to the Tenth Circuit Court of Appeals.

On Appeal, Helix contends that its employees are not entitled to the protections of the FLSA. Helix’s main argument is that all participants in state recreational marijuana industries assume the risk that their activities will subject them to federal criminal sanctions and therefore they are not entitled to benefits under federal law, and cannot expect federal court to aid their conduct. Essentially Helix is arguing that the federal government would be assisting employees in drug trafficking if they afforded the employees the protections of the FLSA.

On September 20, 2019, a three-judge panel of the Tenth Circuit issued an opinion unanimously disagreeing with Helix and holding conclusively that the FLSA does apply to cannabis businesses. In one part of the Kenney opinion, the court noted that “case law has repeatedly confirmed that employers are not excused from complying with federal laws just because their business practices are federally prohibited.â€

The opinion was concise and clear: “the FLSA is focused on regulating the activity of businesses, in part on behalf of the individual workers’ well-being, rather than regulating the legality of individual workers’ activities.†In conclusion, the court held that the FLSA does apply to cannabis companies and allowed the case to proceed. It seemed like this would be the end of the issue. It was not.

After the Helix opinion was issued, Helix asked the Tenth Circuit judges to rehear the case en banc. This is just a legal way of saying they wanted all judges in the appellate court to rehear the case unanimously. That request was denied earlier this year. Then, Helix filed a petition for writ of certiorari with the United States Supreme Court (i.e., they asked the Supreme Court to decide that the Tenth Circuit got the issue wrong).

To be clear, this case probably is going nowhere. The vast majority of Supreme Court certiorari petitions are not granted and those cases are not reheard. In those cases, the ruling of the applicable appellate court panel will stand. Chances are, the U.S. Supreme Court will not even review this case.

But what happens if the Supreme Court does review the case? Will the court actually disagree with the Tenth Circuit? Probably not. It’s hard to see how the Court would disagree that federal employment laws apply to cannabis businesses. It’s settled law at this point that tax laws apply to cannabis businesses, for example. Even though those laws are admittedly very different, we just do not think the Court would give cannabis companies carte blanche to not comply with federal wage laws.

Also very possible is the risk of drastically unintended consequences. If the Court takes the case up, it may reaffirm federal illegality in a manner that is very detrimental to states that have legalized cannabis and operators within those states. There is a lot we don’t yet know about how this will unfold. Stay tuned to the Canna Law Blog for more updates.

The post Does the Fair Labor Standards Act Apply to Cannabis Businesses? The U.S. Supreme Court May Decide appeared first on Harris Bricken.

[janepwilliams87]

DEA Marijuana Scheduling Lawsuit Will Be Appealed To Supreme Court Following Dismissal

A federal appeals court dismissed a lawsuit against the Drug Enforcement Administration (DEA) over the classification of marijuana last week after the plaintiffs announced they would not pursue an administrative policy change as the court had recommended.

Now, the plaintiffs—a coalition of medical cannabis patients and activists, including Alexis Bortell and former NFL player Marvin Washington—plan to take their case all the way to the Supreme Court.

The suit, which was first filed in 2017, argued that keeping marijuana in Schedule I of the Controlled Substances Act (CSA) is unconstitutional because it creates undue burdens that jeopardize patients’ lives by preventing access to what a majority of states now regard as a medicine. They sought a court mandate to enjoin DEA and require the agency to cease enforcement of federal cannabis prohibition.

A U.S. District Court dismissed that request, stating that the plaintiffs must first seek administrative relief through existing channels such as a petition asking DEA directly to reclassify cannabis. The U.S. Court of Appeals for the Second Circuit upheld that decision last year, concluding that it “cannot be seriously argued that this remedy is not available through the administrative process.”

The court kept the case open, stressing that DEA should “promptly” consider rescheduling and gave the petitioners six months to submit a request with the agency. After initially requesting a deadline extension for that action—which was denied in January—the plaintiffs informed the court that they would not be asking DEA to consider rescheduling because they believe they would be denied and because the agency would, at best, reclassify marijuana as a Schedule II drug, which they said would create additional harms.

“As reflected in prior correspondence to this Court, reclassification of cannabis under Schedule II would actually exacerbate the conditions afflicting our clients; would instantly throw thousands of cannabis businesses out of business; and would disrupt the lives of tens of thousands, if not millions, of Americans who rely upon cannabis daily to sustain their health, wellness, and lives,” Michael Hiller, who is representing the plaintiffs, wrote in January.

In a phone interview with Marijuana Moment on Tuesday, Hiller argued that placing marijuana in Schedule II would mean that the industry would have to be medicalized in a way that would end state-regulated dispensaries. Instead, he suggested, cannabis products would have to be Food and Drug Administration-approved, and only pharmacists could prescribe it, limiting access.

That’s an interesting perspective that could create complications for former Vice President Joe Biden, the presumptive Democratic presidential nominee who opposes descheduling but supports moving marijuana to Schedule II. While the modest rescheduling might seem to be an improvement, many advocates familiar with the potential consequences of that policy change are unlikely to view it as a victory.

“Because the petitioning and administrative process under the CSA threatens to harm our clients without affording them the opportunity to achieve the benefits the lawsuit was designed to achieve, we are not going to file the Petition with the DEA,” Hiller wrote.

Because the plaintiffs refused to seek administrative relief, the federal appeals court issued a response on Friday, stating that “it is hereby ORDERED that the district court’s judgment is AFFIRMED and the case is DISMISSED with prejudice.”

The plaintiffs anticipated that decision and wrote in their letter that once judgement is entered, “we will file a petition for a writ of certiorari with the United States Supreme Court in the hope that Plaintiffs may finally be afforded the opportunity to prove at trial, their claims that the mis-classification of cannabis under the CSA violates their rights under the United States Constitution.”

“We always knew we’d end up at the Supreme Court, irrespective of who won in the lower courts, because we are seeking to change the law,” Hiller told Marijuana Moment. “Whenever you seek to change federal law, you are likely to end up at the Supreme Court. Our hope is to win a declaration that the classification of cannabis is unconstitutional (because it is), thereby rendering the CSA unenforceable and legalizing cannabis at the federal level nationwide.”

He also raised the point that the Justice Department could be put in an awkward position if it attempts to oppose the writ of certiorari after it’s filed in July, arguing that it would contradict President Trump, who has voiced support for medical cannabis as well as states’ rights when it comes to adult-use legalization.

“If we were to obtain certiorari and win in the Supreme Court, cannabis would be de-scheduled from the Controlled Substances Act and thus legal under federal law. It would then be up to the individual states to determine whether to legalize or prohibit cannabis cultivation, sale, possession and use,” Hiller said. “That is effectively the outcome that candidate Trump promised to deliver in 2016 when he was running for president.”

“Back then, he stated repeatedly that he was one hundred percent in favor of federally legalizing cannabis for medical use, and that he believed the question of adult-use legalization was for the states to decide individually,” he continued. “Thus, to be consistent with the president’s campaign promise, the Justice Department not only should not oppose our request for certiorari; the Justice Department should join it and advocate for a reversal of the 2d Circuit decision.”

DEA has on numerous past occasions outright denied petitions to change marijuana’s status under the CSA, most recently in 2016.

The current case isn’t the only cannabis-related lawsuit DEA has faced in recent years. Scientists sued the agency last year, alleging that it had deliberately delayed approving additional marijuana manufacturers for research purposes despite pledging to expand the number of those facilities in 2016.

A court mandated that DEA take steps to make good on its promise, and that case was dropped after DEA provided a status update.

Last month, DEA finally unveiled a revised rule change proposal that it said was necessary due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party. A public comment period is now open, after which point the agency says it will finally approve an unspecified number of additional growers.

The scientists behind the original case filed another suit against DEA in March, claiming that the agency used a “secret” document to justify its delay of approving manufacturer applications.

According to the plaintiffs, after DEA said it would accept more cultivators, the Justice Department’s Office of Legal Counsel secretly issued an opinion that interprets international treaty obligations as making it impossible to carry out the 2016 proposed rule while maintaining compliance.

Read the court order and plaintiff letter below:

2nd Circuit Dea Order and L… by Marijuana Moment on Scribd

Lawmakers File Bill To Let Marijuana Businesses Access Federal Coronavirus Relief Funds

Photo elements courtesy of rawpixel and Philip Steffan.

The post DEA Marijuana Scheduling Lawsuit Will Be Appealed To Supreme Court Following Dismissal appeared first on Marijuana Moment.

from Updates By Jane https://www.marijuanamoment.net/dea-marijuana-scheduling-lawsuit-will-be-appealed-to-supreme-court-following-dismissal/

[theonion]

Perhaps the greatest joy in writing fiction lies in the opportunity to fashion an entire world of one’s own devising. As an author, I can bring to life strange, wondrous characters and have them say or do anything I want. Sometimes, I grow so fond of my creations that I long for them to be real, and that’s especially true of the lawyers who fill my books. Oh, how I wish such a fantastical profession could exist outside my novels!

Can you imagine a world in which attorneys were real, actually living among us and practicing law? What could be more amazing than that?

When I sit down to write, I let my creativity run wild, populating my fiction with principled men and women who roam august “courtrooms” in outlandish three-piece suits and deliver arguments based on arcane knowledge they have gleaned from dusty old tomes. To flesh out this whimsical world, I have my lawyers train at institutions like the intensely competitive Harvard Law School, which I created for my 1991 novel, The Firm. They then must take special tests to gain admittance to mysterious “state bar associations.” I’ve even invented an entirely new tongue that attorneys alone can speak, filled with peculiar words like “amicus curiae,” “tort,” and “writ of certiorari.”

After spending so much time with my characters, I can’t help but wonder what it would be like if lawyers were a part of our world, walking among us with their briefcases and their most curious affidavits!

For me, the magical journey all began with criminal defense attorney Jake Brigance, the protagonist I introduced in my first novel, A Time To Kill. I dreamed up special powers for him, including the subpoena, with which he can make people appear at trial against their will, and the cross-examination, which he can use to dispel testimony from a witness conjured by opposing counsel. I created all kinds of lawyers: Brigance was soon joined by the prosecutor Rufus Buckley, a dastardly opponent with an otherworldly ability to transport people to prison, and the divorce lawyer Harry Rex Vonner, an unlikely ally who could make marriages vanish into thin air!

Whenever I so much as think about lawyers, I’m instantly whisked away to a fanciful world I don’t ever want to leave. It might seem silly, but just picture for a moment what it would be like if you could simply hire a lawyer and take someone to court. And what if you could bring your case before a judge, just like the kind you find in my books?

While in court, you might encounter a jury, too. Ah, the cautious, deliberating jury! My second-favorite creation after lawyers. I’m reminded of the day in the mid-1980s when I was at the grocery store, mired in writer’s block over how these so-called cases would reach a verdict, when I rounded the corner and picked up a carton of eggs. That’s when it hit me—a 12-person jury!

With all the marvels involving prosecutors, defenders, judges, juries, and the rest of the court, can you really blame me for wishing this enchanted realm was real life?

But while I do eagerly indulge in such fantasies from time to time, I’m not as zealous as some of my diehard fans are. I’ve met people at book signings who have convinced themselves they really are lawyers. I mean, at a certain point, it’s honestly kind of sad.

[juudgeblog]

Writs

This article is written by Mansi Jain, BBA LLB National Law University, Jodhpur

Article 32(2) provides for the writ jurisdiction of the Supreme Court in India. Similarly, writ jurisdiction for High Courts is provided as to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.[i]

Against whom can a writ be issued?

It’s a duty of the state to not abridge a person from the fundamental rights provided to him by the Constitution, hence a writ can be enforced against the State (as defined under Article 12 of the Constitution). But some fundamental rights such as rights under Article 17, 21, 23 and 24 are also available against private individuals hence writs can be enforced against violation of such rights by private persons.

Who can approach Court under writ jurisdiction?

The general principle is that the locus standi to approach the Supreme Court or High Court for enforcement of rights belongs to the person whose fundamental rights has been infringed. In common law, by the way of Public Interest Litigation(PIL) the locus standi to approach the court has been relaxed and stretched to a public-spirited third party.

What are the different writs enshrined in the Constitution?

The Supreme Court and High Courts shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights[ii] in part III of the Constitution. Hence, the five writs are,

Writs Origin Meaning 1. habeas corpus  Latin You may have the body 2. mandamus  Latin We command 3. prohibition  English To stop/ forbid 4. quo warranto  Latin By what authority 5. certiorari  Latin To be Certified

Habeas Corpus

This writ has been described as the writ of right which is grantable ex debito justitae. The writ of habeas corpus is used to secure the release of a person who has been detained unlawfully or without lawful justification. Value of the writ is an immediate determination of a person‘s right to freedom.

click above

When can detention be called unlawful?

Detention may be lawful if inter alia it is,

not in accordance with the law or

the procedure established by has not been strictly followed in detaining a person or

there is no valid law to authorize detention or

the law is invalid because it infringes a fundamental right or

Is made under legislation enacted exciting its limits.[iii]

Article 22 of the Constitution provides for the rights of a person under detention and Article 21 provides for the right to personal liberty.

This writ of Habeas Corpus may be prayed by the prisoner or the person detained himself or his relatives may also pray before the court on his behalf to question the validity of detention or curtailment of his personal liberty

Other than against the state, Habeas Corpus may also be issued against illegal custody or detention by the private person. This writ can also be evoked for custody of an infant, where the court may adjudicate and award the custody of infant proper person.[iv]

Mandamus

The writ of mandamus is issued to enforce the performance of public duties by authorities of all kinds. The court may command a public authority to perform duty belonging to the office of statutory nature. The object is to prevent the disorder from a failure of justice, where justice despite demanded has not been granted. Mandamus is a very wide remedy and which must be easily available to reach injustice wherever it is found technicalities should not come in the way of granting this relief.

In Common-law the courts do not only issue mandamus for the performance of a duty of public character but also has recognized promissory estoppel and legitimate expectations as the cause of action for evoking the mandamus jurisdiction.

To maintain a balance of power and to avoid abuse of power there are certain conditions in which this writ cannot be issued,

Mandamus cannot be issued against the government to perform non-statutory functions.

Mandamus cannot be issued against the government directing it to approve the rules made by the court regarding the salary et cetera of the staff.

Mandamus cannot be issued to direct the government on the matters in which the government has discretionary or optional power.

Mandamus cannot be issued for the rights of purely private nature.

Mandamus cannot be issued to compel it to pass an order in violation of statutory provisions.

Although the court cannot issue a writ of mandamus quashing the decision made by the state using its discretionary powers yet, the court can quash the order if the discretion has been abused or not properly exercise or if the decision is taken on purely political consideration without any material.

Prohibition

The writ of prohibition is also called as preventive writ. Prohibition is issuable before the proceedings are completed. It is issued to restrain a lower court from acting under an unconstitutional law. In the absence of very cogent and strong reason issuance of the writ of prohibition is improper. It was pointed out since, under CPC, the civil court has sufficient power to decide its own jurisdiction and the High Court erred in interfering by Prohibition and directed the civil court to decide preliminary issues as the maintainability of the suit and applicability/ estoppels.

The writ of prohibition is issued inter alia on the following grounds,

when the body concerned proceed to act without or excess of jurisdiction, or

fails to exercise its jurisdiction, or

there is an error of law apparent on the face of the record in the impugned decision of the body, or

the findings of fact reached by the inferior tribunal are based on no evidence, or

it proceeds to act in violation of the principles of natural justice, or

it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or

it proceeds to act in contravention of fundamental rights[v]

Quo Warranto

This writ calls upon the holder of a public office to show to the court under what authority he is holding that office. Its views to restrain a person from acting in the public capacity which he is not entitled to.

The Court may oust a person from an office to which he is not entitled. It is issued against the usurper of the office and the appointing authority is not a party. The Court can thus control election or appointment to the office against the law and protect from being deprived of a public office in which he may be entitled.

The writ lies only in respect of a public office of a substantial character. The motive of appointing an officer in making the appointment in question is irrelevant in a Quo Warranto petition. This writ cannot be issued against the appointment of a council of ministers, chief ministers, and governors. neither can it question the authority of private institutions to hold an office of a private character.

Certiorari

The writ of certiorari is issued to quash the decision after the decision has already been taken by a lower Tribunal. It may be that in the proceeding before an inferior court the High Court may have issued both prohibitions to prohibit the body from proceeding and certiorari further to invalidate what it has already been done by it.

The jurisdiction to issue certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court.

But it is issued against the act or proceedings of judicial or quasi-judicial body where it has not acted judicially. Since the courts are obliged to act in a certain manner the court can issue this writ even when the list is between private individuals.

As stated in the law lied down in Syed Yakoob v. K.S. Radhakrishnan Certiorari can be issued in following grounds,

when the body concerned proceed to act without or excess of jurisdiction, or

fails to exercise its jurisdiction, or

there is an error of law apparent on the face of the record in the impugned decision of the body, or

the findings of fact reached by the inferior tribunal are based on no evidence, or

it proceeds to act in violation of the principles of natural justice, or

it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or

it proceeds to act in contravention of fundamental rights[vi]

[i] Article 226, The Constitution of India

[ii] Article 32, The Constitution of India

[iii] State in Bihar v. K.P. Verma, AIR 1965 SC 575

[iv] M.P. Jain, Indian Constitutional Law (7th Edition, 2014), LexisNexis, New Delhi.

[v] Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477

[vi] Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477

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[duaneodavila]

Are Embryos People? The Supreme Court May Decide.

People get divorced. It’s regrettable, obviously, but hardly the type of issue that typically belongs in federal court. But here we are.

What started as your standard run-of-the-mill divorce case may get the attention of the United States Supreme Court. That’s because the Thomas More Society—which is a national public interest law firm that says it’s “dedicated to restoring respect in law for life, family, and religious liberty”—has filed a petition for writ of certiorari with the US Supreme Court. The petition, on behalf of former Colorado resident Mandy Rooks, asks the Court to definitively rule that cryopreserved embryos are human persons, and therefore entitled to all the rights of other, like … born, humans.

The Rooks case is familiar for loyal readers. The central dispute is about the divorce of Mandy and Drake Rooks. When they were married, they, like many couples, struggled with infertility and turned to in vitro fertilization (IVF) to conceive their children. At the time of the divorce, three embryos had become their children, and there were six remaining cryopreserved embryos. Drake Rooks wants those six stored embryos discarded. Mandy Rooks wants to use the remaining embryos for conception. During the dissolution of marriage, the Colorado trial court ruled in favor of Drake Rooks, and the Colorado Court of Appeals affirmed that ruling.

Last October, the Colorado Supreme Court weighed in, ruling that the Colorado Court of Appeals had used inappropriate factors when weighing the interests of the parties. The Colorado Supreme Court sent the case back to the trial court to weigh the parties interests properly. This included instructions not to consider such factors as the ability of the party wishing to use the embryos to afford a child, whether such a party already has children (as a factor, standing alone), or whether such a party could have non-genetic children by other means, such as adoption. That is where the case currently stands in Colorado.

Did Our Forefathers Intend For Frozen Embryos To Be Treated As Persons?

The petition at issue now asks SCOTUS to answer (1) whether extracorporeal (aka frozen) embryos created during a marriage are persons or property, and (2) whether classifying embryos as property, and therefore permitting one spouse to discard or donate them to a third party, violates the religious rights of the other spouse who believes the embryos have souls.

Up until this petition, and her recent change of counsel to a Thomas More Society attorney, Mandy Rooks had not been arguing that the embryos in dispute were actual people with souls. Instead, she had argued merely that fertilization, when done with the parties’ consent, constitutes an advance waiver of the right not to be a genetic parent, and that Drake Rooks was not permitted to withdraw his consent for her, his ex, to use the embryos for conception.

What’s In A Name?

The Colorado Supreme Court was careful to use the term “pre-embryos,” instead of the more colloquial term “embryos,” noting that the use of the term “pre” means that the embryo hasn’t actually been implanted into a uterus yet. It also pointed to a number of times where Colorado law is careful to note that a “person” does not include a human embryo.

The cert petition, in contrast, argues that it is “long-known biology that all human beings come into existence by the creation of the zygote upon the fusion of a sperm cell with a [sic] oocyte (egg cell).” The petition argues that from that earliest stage, the law must recognize embryos as persons. Building on that premise, the petition argues that a number of constitutional violations are present in the Rooks case. For one, the petition argues that the preamble to the Constitution, securing “the Blessings of Liberty to ourselves and our Posterity” intended for “Posterity” to mean our descendants, and that includes our embryos. Among the many other Constitutional violations noted in the petition there is that of the Thirteenth Amendment. You know, the one abolishing slavery and indentured servitude.

I spoke with attorney Tim Schlesinger about this petition. Schlesinger is well known in the assisted reproductive technology (ART) legal community for a case called McQueen. In McQueen, a man, like Drake Rooks, did not want his ex-wife to use their remaining cryopreserved embryos. In that case, Schlesinger was up against an even tougher situation thanks to being situated in Missouri and Missouri having a statute on the books that legally defines life to start at “conception,” and further defines conception to include “the offspring of human beings in the moment of conception until birth and at every stage of its biological development, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus.” Despite this statute, the Missouri Court of Appeals ruled that the ex-wife’s use of the embryos would be a violation of the ex-husband’s Constitutional right *not* to reproduce.

Schlesinger notes in our conversation that “conception” is purely a legal concept. Medically speaking, an embryo or pre-embryo is a fertilized ova. But he notes that there are several fundamental flaws in the argument that embryos are persons. Among those is the Supreme Court’s established Constitutional right of reproduction – including the right to have a child or not to have a child. To define embryos as persons, Schlesinger explains, would take away the progenitors’ rights to determine to be genetic parents or not. Prospective parents would be forced to become parents of all of their frozen embryos, no matter how many, whether they wanted to or not. In other words, if the Supreme Court is going to overturn Roe v. Wade, it probably won’t be in a case about divorce and fertilized ova.

Our Dystopian Future

So my prediction is that like other recent cases with similar facts, this petition won’t be granted. That’s good for assisted reproductive technology, because a ruling that embryos are persons would implicate a host of mind-blowing issues. What if freezer doors are left open, or cooling tanks fail? What if no one wants the millions of cryopreserved frozen embryos in the country? Even those sympathetic to pro-life arguments applied to cryopreserved embryos may recognize the sharp changes in the legal system if embryos can’t be legally discarded.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Are Embryos People? The Supreme Court May Decide. republished via Above the Law

[simonconsultancypage]

Is There an Alternative to the Status Quo on Merger Objection Lawsuits?

These days just about every public company merger transaction draws at least one merger objection lawsuit. These lawsuits formerly were filed in Delaware state court alleging violations of Delaware law, but since the 2016 Delaware Chancery Court decision in the Trulia case, in which the court expressed its distaste for this type of litigation, the lawsuits have been filed in federal court based on alleged violations of Section 14 of the Securities Exchange Act of 1934. These cases, through frequently filed, are rarely litigated. They typically are resolved by the defendants’ voluntary insertion of supplemental proxy disclosures and agreement to pay the plaintiff a “mootness” fee.

  However, in a recent case a corporate defendant refused to update the proxy and succeeded in getting the case dismissed. As discussed in a recent law firm memo about the dismissal ruling, the “usual playbook” for these kinds of cases – making supplemental disclosures and paying a mootness fee – may not be the best approach, and the ruling itself may provide ammunition for companies that want to try an “alternative to the status quo.”

  District of Connecticut Judge Michael P. Shea’s April 16, 2020 ruling on the company’s motion to dismiss in the SI Financial case can be found here. The Cleary Gottlieb Steen & Hamilton memo appeared as a July 12, 2020 post on the Harvard Law School Forum on Corporate Governance entitled “Doubt on Merger Disclosure Claims in a Rare Federal Court Decision” (here).

  Background

In December 2018, SI Financial Group, a New England financial services company, announced that it was going to merger into Berkshire Hills Bancorp. SI filed its preliminary proxy on February 4, 2019, after which a shareholder plaintiff filed a lawsuit in federal court in Connecticut alleging that material information had been omitted from the proxy.

  Among other things, the plaintiff alleged that the proxy omitted information about an alternative bid the SI board had rejected; background information about SI’s financial advisors fairness opinion and analysis; and details about SI insiders’ interests in the merger. The plaintiff alleged that in making these omissions the defendants had violated Section 14 of the Securities Exchange Act of 1934.

  Contrary to the usual pattern of events, SI refused to make any supplemental disclosures. The plaintiff failed to make any move to seek a preliminary injunction blocking the merger and the merger closed on May 17, 2019. Following the merger, the litigation continued in the form of a damages lawsuit. SI filed a motion to dismiss arguing that the plaintiff had failed to state a claim under Section 14.

  The April 16, 2020 Ruling

In his April 16, 2020 order, Judge Shea granted the defendants’ motion to dismiss. In making this ruling, Judge Shea contrasted the pleading standard under Section 14 with the duty of disclosure under Delaware law. Delaware law, Judge Shea said, “includes a general prohibition on the omission of material facts” when a board of directors is seeking shareholder action.

  By contrast, he said, an alleged omission in a proxy statement violates Section 14 (and applicable rules) only if “the SEC regulations specifically require disclosure of the omitted information in a proxy statement, or the omission makes other statements in the proxy statement materially false and misleading.” Thus, while it may be sufficient under Delaware law to plead the omission of a material fact, that is not enough to plead a claim under Section 14.

  Judge Shea concluded that the plaintiff had essentially alleged that the omitted information would have been helpful to shareholders; however, this was insufficient. He said, “As helpful as this information might have been to investors, Plaintiff fails to allege any facts suggesting that its absence made any statement in the Proxy misleading. And he certainly does not specify any statement that was made misleading as a result of these omissions, let along provide ‘the reason or reasons why the statement was misleading.” He added that the plaintiff did not allege “except in a conclusory fashion” how the disclosure of the omitted information “would have changed the overall picture of the transaction presented by the Proxy.”

  Discussion

On the one hand, Judge Shea’s ruling in the SI Financial case suggests that many defendants who want to fight merger objection suits have substantial grounds on which to rely. As the authors of the law firm memo put it, the SI Financial case “demonstrates that it is very difficult for stockholder plaintiffs to plead a viable Section 14 claim in a strike suit merger case. The typical Section 14 case, the memo’s authors note, “does not come close to meeting the standard articulated in SI Financial” – which, the authors note, is hardly surprising as in most cases the plaintiffs have no idea what the omitted facts are, and no means of discovery or for a books and records inspection.

  So does that mean more defendants will be fighting these cases rather than just paying the plaintiffs’ lawyer to go away? Unfortunately, it may not. The usual process for disposing of these cases – making a few meaningless changes to the proxy and paying the plaintiffs’ lawyers a modest sum – costs so little for most defendants that the alternative seems less than compelling. The participants to the merger deal also don’t want to risk delaying the transaction or face other litigation risks. Also, most merger transaction participants (particularly the target companies) are not likely to be repeat participants in this type of litigation, so they may feel little incentive to trouble themselves to try to address a systemic problem.

  But does that mean, the memo’s authors ask, that the “proliferation” of Section 14 merger objection lawsuits is “inevitable”? The authors suggest that there are several ways that the pace of these cases might be slowed, or even ended. There are, the authors suggest, a number of considerations that “highlight the fact that defendants have options” and that “should give ammunition to companies and boards that want to consider … an alternative to the status quo.”

  First, even though defendants may lack the incentives, if more defendants refused to make supplemental disclosures and pay mootness fees, these cases would quickly become both more expensive and less lucrative for the small number of plaintiffs’ firms that file most of these lawsuits – which would, in turn, “likely discourage such cases from being filed in the first place.

  Second, while most merger participants are not repeat players, there are a number of other companies that are serial acquirers and that may want “to pursue a public strategy of refusing to settle these cases as a way of discouraging the plaintiffs’ bar.”

  Third, there is an important case pending in the Seventh Circuit that could have a substantial impact on these cases. As I noted at the time (here), in June 2019, Northern District of Illinois Judge Thomas Durkin abrogated the settlement of a merger objection lawsuit and ordered the plaintiffs’ counsel to disgorge the $322,000 mootness fee that the defendants had agreed to pay. Judge Durkin expressly found that the additional disclosures the defendants had made were “worthless to shareholders” and concluded that the mootness fee was not justified. (He also had a lot of choice words about this type of litigation.) As discussed here, Judge Durkin’s mootness fee ruling is on appeal to the Seventh Circuit. If Judge Durkin’s ruling were to be affirmed, it could have a substantial impact on the filing of merger objection lawsuits, at least in the Seventh Circuit.

  Fourth, there are other arguments defendants may raise as well; among other things, defendants could argue that the PSLRA bars attorneys’ fees when plaintiffs achieve only a non-monetary recovery. Also, in light of the fact that most Section 14 actions have little chance of surviving a motion to dismiss, courts could enforce the PSLRA’s mandatory sanctions provision for violations of Rule 11.

  Finally, another defendant could try to raise the argument that there is no private right of action under 14(e) (relating to tender offers), as had been argued in the case that was before the U.S. Supreme Court in Varjabedian v. Emulex Corporation. As discussed here, in January 2019, the Court had granted a writ of certiorari in the case to take up the question about the existence of a private right of action for misrepresentations in connection with a tender offer. However, the court did not reach the merits of the case, as it dismissed the writ as having been improvidently granted before ruling on the case. Another defendant could take up this argument, but, as the memo’s authors’ note, the impact of the case would be limited to tender offer cases and “would not likely have an immediate impact on cases involving traditional mergers, in which the company issues a proxy statement governed by Section 14(a).”

  Judge Shea’s ruling in the SI Financial case and the authors’ suggestions of other ways that companies might try to fight merger objection suits are heartening. I have long argued, along with numerous other observers, that the merger objection lawsuit “racket” is a curse on the system the effectively imposes a process tax (to be paid the plaintiffs’ lawyers) on the parties to merger transactions in the U.S.

  Unfortunately any progress toward overcoming this litigation curse depends on defendant companies sidestepping the usual, low-friction means of getting rid of these cases, in order to fight a systemic problem. Because they are unlikely to be repeat litigants, most companies may feel there is little incentive for them to get involved in trying to fight this curse. While the memo’s authors optimistically point to the ways defendants might fight these cases, the reality is that few defendants will actually fight. That is why the plaintiffs’ lawyers continue to cynically file these kinds of cases, they know they can score a small fee without much bother or fight.

  It also is important to note that while other defendants might be heartened by Judge Shea’s ruling in the SI Financial case, the plaintiff in the case has filed a notice of appeal, so there could be more of this story to be heard.

  The appeal in the Seventh Circuit may have some promise, at least with respect to cases within the Seventh Circuit. However, while I find Judge Durkin’s district court opinion in the Akorn case compelling, on appeal the plaintiffs’ lawyers fighting to retain their mootness fee have raised important questions about the district court’s ability to abrogate the settlement and order the disgorgement of the fees. It remains to be seen how this case will fare on appeal.

  The surest remedy could be legislative; Congress could, for example, specify that there is no private right of action at all under Section 14. That would force the plaintiffs’ back on their state court remedies. Alternatively, Congress could require court approval of the payment of mootness fees in Section 14 cases, or otherwise require Court supervision of the resolution of Section 14 cases, as was suggested in a recent guest post on this site. Unfortunately, the likelihood of this type of reform seems remote given our current divided and distracted Congress.

  In the end, it does seem like the only thing that is really going to help here is for more defendants to fight these cases rather than just rolling over. The more the plaintiffs’ lawyers have to fight these kinds of cases, the fewer of them they will file. As the law firm memo’s authors note, settlement is “not inevitably the best course” for merger objection lawsuit defendants”; defendants “should seriously consider whether the usual playbook is still the best approach.”

Is There an Alternative to the Status Quo on Merger Objection Lawsuits? published first on http://simonconsultancypage.tumblr.com/

[lawfultruth]

Supreme Court to Consider SEC’s Authority to Seek and Obtain Disgorgement

In its June 2017 decision in Kokesh v. SEC  (discussed here), the U.S. Supreme Court held that disgorgement in an SEC enforcement action represents a “penalty,” and therefore a SEC enforcement action  claim for disgorgement is subject to a five-year statute of limitation. In reaching this decision, the Court emphasized (in footnote 3 to the opinion) that it was only deciding the statute of limitations issue, and was emphatically not reaching the larger issue of whether the SEC has the proper authority to order disgorgement in enforcement proceeding.

  Having previously reserved this larger question in Kokesh, the Court has now agreed to take up a case that will address head-on the question of whether the SEC has the authority to order a disgorgement. On November 1, 2019, the Court granted the petition for a writ of certiorari in the case of Liu v. SEC, which will require the Court to decide whether the SEC may seek may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court determined in Kokesh that disgorgement is a penalty.  The Court’s November 1, 2019 order granting the writ of certiorari can be found here.

  Background

The case now before the Supreme Court arises out of an enforcement action the SEC brought against Charles Liu and Xin Wang.

  The two individuals had organized an EB-5 investment program, through which Chinese investors, in exchange for investment commitments, could obtain a U.S. Visa. The two ultimately raised $27 million from 50 Chinese investors. The investors were told that the money would be used to develop and build a cancer-treatment center. The center was never built. The SEC contends that a substantial amount of the funds raised wound up in the defendants’ overseas bank accounts.

  In May 2016, the SEC filed an enforcement action against Liu and Wang.  The district court ultimately ordered them to pay $26.7 million in disgorgement – virtually all the money they had raised – as well as a statutory penalty totaling over $8 million. In October 2018, the Ninth Circuit affirmed the district court.

  The Cert Petition

In May 2019, Liu and Wang filed a petition to the United States Supreme Court for a writ of certiorari. The petition seeks to have the Court address the question that it declined to reach in Kokesh – that is, whether or not the SEC has the authority to seek and obtain disgorgement as “equitable relief.”

  In making this argument, the petitioners noted that under its statutory authority, the SEC, in pursuing an action to enforce the securities laws, may obtain only injunctive relief, equitable relief, or civil monetary penalties. Despite this limitation, the petitioners said, the SEC sought and the Court awarded disgorgement against them. In doing so, the district court relied on pre-Kokesh authority in which disgorgement was interpreted as a form of “equitable relief.”

  According to the petitioner, this view of disgorgement as equitable relief “cannot survive this Court’s reasoning in Kokesh.” The Court’s logic in Kokesh, in which the concluded that disgorgement is a penalty, is contrary to the long-standing view pre-Kokesh, that disgorgement was remedial rather than punitive and therefore represents equitable relief. (In making this argument, the petitioners cite at length from a dissenting opinion written by then-Judge Kavanaugh prior to his arrival on the U.S. Supreme Court.)

  The petitioners argue further that Congress never authorized SEC disgorgement authority, and that in light of the Supreme Court’s conclusion in Kokesh that disgorgement is a penalty, for the SEC to seek and obtain a disgorgement award exceeds its enforcement authority.

  The SEC’s Opposition to the Cert Petition

In its opposition to the cert petition, the SEC raised a number of arguments. Among other things, the SEC argued that the agency’s disgorgement authority arises under its statutory authorization to seek “injunctive relief.” The SEC also argued that there is nothing about the Court’s decision in Kokesh holsinf that disgorgement represent a penalty that means that disgorgement cannot qualify as an equitable remedy. “A remedy,” the agency argued, “can qualify as a form of equitable relief even though it might also be considered ‘penal’ for some purposes.” Kokesh was a statute of limitations case, the agency argued, and the Kokesh Court’s holding that disgorgement constitutes a “penalty” within the meaning of the relevant statute of limitations is not inconsistent with the proposition that disgorgement represents a form of equitable relief.

  Discussion

The Court will now take up the question it previously reserved in Kokesh. I have say after reviewing the record that the question of the SEC’s authority could not come up in a set of facts less sympathetic to the petitioners. These petitioners are not going to win over many hearts. That said, they do raise an interesting question; the question they raise is not just one that the Kokesh court declined to address but it is also one that it was clear during oral argument in Kokesh that troubled several members of the Court. (There is also that opinion by Kavanaugh when he was on the D.C. Circuit in which he said that if disgorgement was a interpreted to be a penalty it could overturn extensive precedent on the SEC’s remedial authority…)

  It remains to be seen how the Court will rule on this case ; indeed, the Court has only just taken up the case, and the parties have yet to brief the case and to present their oral arguments.

  Just the same it is always interesting when the Court takes up a case that presents the possibility of upsetting long-standing precedent and practices. The fact is that the outcome of any given Supreme Court case is whatever result five justices decide. This case may or may not conclude that the SEC lacks disgorgement authority, but the possibility that the Court could reach that result certainly raises the interest level for this case. In any event, it is going to be interesting when the Court take up a case that will address a question so fundamental to the SEC’s enforcement authority.

  And of course, if the Court were to conclude that the SEC lacks disgorgement authority, what would that do to all of the pending cases in which the Court is seeking disgorgement? What it would do to prior cases in which the Court obtained disgorgement? And if the Court were to conclude that the agency lacks disgorgement authority, what it would it do to the SEC’s future enforcement actions and efforts?

  Lots of interesting things to think about while this case unfolds… The case should be decided before the of the current term at the end of June 2020.

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