Appellate Advocacy Blog Weekly Roundup Friday, April 24, 2020

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

The Supreme Court issued (from home) a number of opinions this week, including:

• Barton v. Barr: The Court affirmed the lower court’s decision holding that a US permanent resident of over 30 years was ineligible to have his deportation cancelled. The case concerned the interpretation of an immigration law that allows immigrants who were deemed “deportable” based on the commission of certain crimes to petition to have their deportation cancelled. The decision interpreted a statutory provision known as the “stop-time” provision, which requires that an immigrant can only be eligible for deportation cancellation if the immigrant has been a continuous resident for at least seven years without committing a serious crime (the crime that renders an immigrant “deportable” can apparently have been committed at any time). The issue came down to whether the “serious crime” in the stop-time provision has to be one of the “certain crimes” that renders an immigrant “deportable.”  The Court affirmed the lower court’s interpretation of the statute and ruled that the crime did not need to be one of the crimes that is listed as a deportable crime. See reports at The Jurist and Bloomberg Law.

• County of Maui v. Hawaii Wildlife Fund: The Supreme Court broadly interpreted the “functionally equivalent” test in the Clean Water Act. The law requires a permit for a direct discharge of pollutants into federally regulated rivers and oceans or its functional equivalent. The issue was whether Maui County violated the Act by injecting wastewater underground without a permit. The Court concluded that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters” and retuned the case to the circuit court.  See reports at The Hill, The Jurist, USA Today, The Associated Press, and The National Law Review.
  
  

• Ramos v. Louisiana: This decision affirms that non-unanimous jury verdicts for serious crimes is unconstitutional and that the requirement applies to states cases as well as federal, which overturns precedent from the 1970s. The decision affects only two states: Louisiana, where the case originated and whose recent law barring non-unanimous jury decisions only applies to verdicts from after 2018, and Oregon, the only state that still allows non-unanimous verdicts. The decision recognized that allowing convictions with non-unanimous juries was rooted in racism, noting that Louisiana had adopted the rule as a way to maintain the “supremacy of the white race” and that the Oregon law could be traced to efforts to dilute “the influence of racial, ethnic, and religious minorities” on juries. Many see this 6-3 decision (and its concurrences and dissents) on what may seem to be a straightforward issue as illuminating on the issue of the role of precedent in future cases. See some of the many reports at The Los Angeles Times, The Wall Street Journal, The Associated Press, Reuters, and the New York Times from Adam Liptak and Linda Greenhouse.

• Ramos is also noteworthy (especially for legal writers) as being possibly the first Supreme Court decision to have footnoted all citations (there have been dissents that have previously footnoted citations). See Twitter discussion on both sides of that debate here and here.

Other opinions issued this week can be found here: Thryv, Inc. v. Click-To-Call Technologies, LP; Atlantic Richfield Co. v. Christian; and Romag Fasteners, Inc. v. Fossil, Inc.

Federal Appellate Court Opinions and News

• The Sixth Circuit ruled that “the Constitution provides a fundamental right to a basic minimum education,” which it defined as an education that “plausibly provides access to literacy.” This decision allows students in Detroit’s public schools to go forward with their claims that they have been denied access to literacy. Though the Supreme Court has discussed this issue, it has never decided it. See opinion and reports at The ABA Journal, The Detroit Free Press, and The National Review,  and see a 2018 New Yorker article on the issue.

• In Tennessee, a US District Court has blocked the state’s order prohibiting procedural abortions during COVID-19.  The opinion recognizes that “[d]elaying a woman's access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether.”  See report in The Tennessean, The Associate Press, and CNN.  But in Arkansas and Texas this week, state bans have been upheld or reinstated. In Arkansas, the Eight Circuit dissolved a judge’s restraining order that had allowed surgical abortions to continue after the AR department of health told clinics to stop performing procedures unless needed to protect the life or health of the mother.  See opinion and reports at The Associate Press, The Jurist, and Law360. And, in Texas, the Fifth Circuit has reinstated most of Texas’s abortion ban, ruling that medication abortions (those induced with pills) may also be restricted, but only as applied to those who would reach Texas’s 22-week gestational limit for a legal abortion while the ban was in place. This ruling comes less than a week after it had allowed them to continue.  See opinion and reports from Fort Worth Star-Telegram, Reuters, The Hill, and Bloomberg.

• In the face of a Second Amendment challenge, the Fifth Circuit confirmed the validity of a statute that prohibits the possession of a firearm by a person who is subject to a restarting order due to a conviction for domestic violence.  See opinion.

Appellate Practice Tips

A recent Texas Appellate Law Podcast this week covered tips for using an iPad as appellate lawyer with guest Jeff Richardson, whose blog is iPhone J.D. Thanks, Jeff for the email!