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Brittony Maag

Brittony Maag is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org

Supreme Court issues rulings involving the Foreign Sovereign Immunities Act

The U.S. Supreme Court (SCOTUS) took action on a number of cases on February 3, issuing opinions in three cases, granting review in one case, and removing two cases from its February 2021 argument calendar.

SCOTUS issued opinions in Salinas v. United States Railroad Retirement Board, Federal Republic of Germany v. Philipp, and Republic of Hungary v. Simon.

Salinas v. United States Railroad Retirement Board involved the scope of judicial review of actions taken by administrative agencies. In a 5-4 opinion, the court ruled that a choice by the U.S. Railroad Retirement Board not to reopen a decision to deny Manfredo Salinas benefits was a final agency action subject to judicial review. In the majority opinion, the court said that review of agency reopening decisions will be limited to weighing whether the agency decision was an abuse of discretion. SCOTUS’ ruling reversed the United States Court of Appeals for the 5th Circuit’s decision and remanded the case back to the lower court for further proceedings. Justice Sonia Sotomayor wrote the majority opinion that was joined by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Brett Kavanaugh. Justice Clarence Thomas filed a dissenting opinion that was joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.

Federal Republic of Germany v. Philipp concerned the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). In a unanimous ruling, SCOTUS vacated the U.S. Court of Appeals for the D.C. Circuit’s ruling and remanded the case for further proceedings, holding that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals’ property is not unlawful under the international law of expropriation. Chief Justice John Roberts wrote the opinion for the court.

Republic of Hungary v. Simon also involved the doctrine of international comity and the expropriation exception of FSIA. In a unanimous, unsigned opinion, SCOTUS vacated the U.S. Court of Appeals for the D.C. Circuit’s ruling and remanded the case for further proceedings consistent with the court’s ruling in Federal Republic of Germany v. Philipp.

SCOTUS granted review in the case of PennEast Pipeline Co. v. New Jersey. The case originated from the U.S. Court of Appeals for the 3rd Circuit and concerns jurisdictional requirements of eminent domain under the Natural Gas Act. 

The case: The Natural Gas Act (NGA) allows private gas companies to exercise the federal government’s power to take property by eminent domain if certain jurisdictional requirements are met. Natural gas company PennEast Pipeline Company (“PennEast”) was scheduled to build a natural gas pipeline through part of New Jersey. PennEast obtained federal approval and sued for access to the properties under the NGA in federal district court. The State of New Jersey (“New Jersey”) sought to dismiss PennEast’s suits, arguing that PennEast did not satisfy the NGA’s jurisdictional requirements and that the state held immunity from the suit under the Eleventh Amendment to the U.S. Constitution. The U.S. District Court for the District of New Jersey allowed PennEast immediate access to the properties at issue. New Jersey appealed to the U.S. Court of Appeals for the 3rd Circuit, which held that New Jersey was immune and vacated the district court’s orders.

The issue: “Whether the NGA delegates to FERC certificate holders [have] the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.”

SCOTUS also announced it was removing two cases from its February argument calendar: Trump v. Sierra Club and Wolf v. Innovation Law Lab. In both cases, the U.S. government requested the court remove the cases from its argument calendar to allow the government to hold further briefings related to policy changes enacted by the Biden administration. SCOTUS granted the government’s motions. Trump v. Sierra Club had been scheduled for argument on February 22; Wolf v. Innovation Law Lab had been scheduled for March 1.

SCOTUS began hearing cases for its October 2020-2021 term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June. As of February 3, 2021, the court had agreed to hear 63 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

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Filing period to close Feb. 3 for municipal elections in two Ohio cities

The candidate filing deadline to run for elected office in Columbus and Cleveland, Ohio, is on February 3, 2021. Prospective candidates in Columbus may file for the following municipal and school district offices:

  • City attorney
  • City auditor
  • City council (3 seats)
  • Columbus City Schools Board of Education (3 seats)

In Cleveland, prospective candidates may file for the following municipal offices:

  • Mayor
  • City council (17 seats)
  • Municipal court judge

The primary elections are scheduled for May 4, and the general elections are scheduled for November 2.

Columbus and Cleveland are the first- and second-largest cities in Ohio, respectively. Columbus is the 16th-largest city in the United States by population, and Cleveland is the 48th-largest. The Columbus City Schools district is the largest school district in Ohio; it served 50,219 students as of the 2017-2018 school year.

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Ben Robbins wins Alabama House District 33 special election

Ben Robbins (R) won the special general election for the District 33 seat in the Alabama House of Representatives on January 19, 2021. Robbins defeated Fred Crum, who was nominated by the Alabama Democratic Party to run in the special general election after Democratic primary winner Terra Foster withdrew from the race. Unofficial results from the state show Robbins won by a margin of 68% to 32%.

The seat became vacant after former incumbent Ronald Johnson (R) passed away on July 14, 2020. Johnson had held the District 33 seat since 1978. Once he is sworn in, Robbins will serve the remaining two years of Johnson’s term.

Alabama has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. As of January 20, there were 23 Republican trifectas, 15 Democratic trifectas, and 12 divided governments where neither party held trifecta control. In the 2020 election, Republicans had a net gain of two trifectas, and two states under divided government became trifectas.

As of January 2021, 23 state legislative special elections have been scheduled for 2021 in 16 states. Between 2011 and 2019, an average of 77 special elections took place each year.

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SCOTUS vacates appellate court ruling, remands case to bankruptcy court in City of Chicago, Illinois v. Fulton

Image of the front of the United States Supreme Court building

On January 14, 2021, the Supreme Court of the United States issued a unanimous ruling in the case City of Chicago, Illinois v. Fulton. The case originated from the U.S. Court of Appeals for the 7th Circuit and concerned retained property under the federal Bankruptcy Code. The case was argued during the court’s October term for 2020-2021 on October 13, 2020. Oral arguments were initially scheduled for April 20 but were postponed in response to public health guidance on COVID-19.

The case: The City of Chicago towed and impounded Robbin Fulton’s vehicle. Fulton filed a petition for Chapter 13 bankruptcy and a repayment plan in federal bankruptcy court. Fulton requested that the City return her vehicle. The City declined to do so. Fulton moved for sanctions against the City of Chicago. The City asserted that it would retain possession of the vehicle and cited an exemption from the Bankruptcy Code’s automatic stay.

The bankruptcy court ruled that the City was required to return the vehicle, imposed sanctions, and sustained Fulton’s objection to the City’s assertion of its status as a secured creditor. The City moved to stay the order, but the court denied the request. The City returned the vehicle and appealed to the 7th Circuit. The court affirmed the bankruptcy court’s ruling.

The issue: “Whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition.”

The outcome: In an 8-0 opinion, the court vacated the 7th Circuit’s ruling and remanded the case, holding that retaining property after a bankruptcy petition is filed does not violate the Bankruptcy Code.

As of January 14, 2021, the court had issued opinions in 11 cases this term. Four cases were decided without argument.

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U.S. Bureau of Labor Statistics releases December 2020 unemployment data

On January 8, 2021, the U.S. Bureau of Labor Statistics (BLS) released its unemployment data for December 2020. The unemployment rate for December was 6.7%, the same rate that was reported for November 2020. The year’s highest unemployment rate was recorded in April 2020 at 14.8%; the year’s lowest reported rate was 3.5% in both January and February 2020.

The average yearly unemployment rate for 2020 was 8.1%. This is the highest average yearly rate since 2012 when it also equaled 8.1%. The highest average yearly rate over the past decade (2010-2020) was 9.6% in 2010. The lowest average rate over the past decade was 3.7% in 2019.

The BLS began collecting monthly unemployment data in 1948. The bureau classifies people as unemployed if they do not have a job, have actively looked for a job in the past four weeks, and are available for work—or if they are waiting to be recalled to a job from which they were temporarily laid off. The BLS uses data from the monthly Current Population Survey (CPS) conducted by the United States Census Bureau. The survey collects data each month from 60,000 households—approximately 110,000 individuals—selected from a sample of 800 geographic areas designed by the Census Bureau to represent each state and the District of Columbia.

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Trump has appointed second-most federal judges through December 31 of a president’s fourth year

Donald Trump has appointed and the U.S. Senate has confirmed 234 Article III federal judges through December 31, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 261 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through December 31 of their fourth year in office is 205.

The median number of Supreme Court justices appointed is two. President Donald Trump (R) has appointed three Supreme Court justices. Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 56, and Presidents Clinton and Obama appointed the fewest with 30 each. Trump’s 54 appointments make up 30.2% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 168. Carter appointed the most with 202, and President Reagan appointed the fewest with 129. Trump has appointed 174 district court judges so far. Those appointments make up 25.7% of the 678 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

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U.S. Senate confirms Court of Federal Claims nominee

On December 19, 2020, the U.S. Senate confirmed Thompson Michael Dietz to the United States Court of Federal Claims by a vote of 51–36. He was nominated to the court by President Donald Trump (R) on July 2, 2020, and will join the court upon receiving his judicial commission and taking his judicial oath. Dietz was nominated to replace Judge Victor J. Wolski, who assumed senior status on July 13, 2018.

The United States Court of Federal Claims is an Article I tribunal, a federal court organized under Article I of the U.S. Constitution.

After Dietz receives his judicial commission, the 16-member Court of Federal Claims will have:

  • Five vacancies
  • Eight Republican-appointed judges
  • Three Democrat-appointed judges

In addition to Dietz, President Trump has appointed seven judges to the court. Another five Trump-appointed nominees are pending. President Barack Obama (D) appointed three judges to the court.

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Melissa Standridge sworn in as Kansas Supreme Court justice

Melissa Standridge was sworn in on Dec. 14 as a justice on the Kansas Supreme Court. Gov. Laura Kelly (D) appointed Standridge on Nov. 30 to succeed Justice Carol Beier, who retired on Sept. 18. Standridge was Gov. Kelly’s third nominee to the seven-member supreme court.

Under Kansas law, the governor selects a supreme court justice from a list submitted by the Kansas Supreme Court Nominating Commission.

Prior to her appointment, Standridge was a judge on the Kansas Court of Appeals from 2008 to 2020. She was appointed to that court by Gov. Kathleen Sebelius (D). Before that, Standridge was chambers counsel for Magistrate Judge David Waxse of the United States District Court for the District of Kansas from 1999 to 2008; an attorney for Shook, Hardy & Bacon from 1995 to 1999; and chambers counsel for Judge Elmo Hunter of the United States District Court for the Western District of Missouri from 1993 to 1995.

Standridge earned a bachelor’s degree in business administration from the University of Kansas in 1984. She received a J.D. from the University of Missouri-Kansas City School of Law, where she served as the editor-in-chief of the Law Review.

In 2020, there have been 23 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, one vacancy occurred when a justice was not retained, and 21 vacancies were caused by retirements.

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Robert Carter fills vacancy on Illinois Supreme Court

Robert L. Carter became a justice of the Illinois Supreme Court on December 8, 2020. Carter was nominated to the court on November 10 to replace former Justice Thomas Kilbride, who lost the seat after failing to meet the 60% vote threshold required by Illinois law for judges to remain on the bench. Kilbride received 56.5% of the vote in his retention election on November 3. 

Under Illinois law, the Illinois Supreme Court appoints its own interim members in the event of a vacancy, as in this case. Justice Carter will serve until December 5, 2022, when he will be required to run in a partisan election for the seat. The winner of that election will serve a full 10-year term on the seven-member supreme court. Including Carter, four justices joined the court through appointment; the other three justices were elected.

Prior to his appointment to the Illinois Supreme Court, Carter was a judge of the Illinois Third District Appellate Court from 2006 to 2020. He was appointed to the position to succeed Judge Tobias Barry. Before that, Carter was a judge of the Illinois 13th Circuit Court from 1979 to 2006. He became the chief judge in 1993.

Carter obtained an A.B. in 1968 and a J.D. in 1974 from the University of Illinois at Champaign-Urbana. He also received his M.A. in administration from Sangamon State University (now the University of Illinois, Springfield) in 1974. Before attending graduate and law school, he served in the U.S. Army in Vietnam in 1969 and 1970.

In 2020, there have been 23 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, one vacancy occurred when a justice was not retained, and 21 vacancies were caused by retirements.

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Two judicial nominees confirmed to federal district courts

On December 1, 2020, the U.S. Senate confirmed two nominees to federal district court judgeships. Philip Calabrese was confirmed to the United States District Court for the Northern District of Ohio by a vote of 58–35. Taylor McNeel was confirmed to the United States District Court for the Southern District of Mississippi by a vote of 53–39. Both judges will join the respective courts upon receiving their judicial commissions and taking their judicial oaths.

Philip Calabrese was nominated to the Northern District of Ohio court by President Donald Trump (R) on March 3, 2020, to replace Judge Christopher Boyko, who assumed senior status on January 6, 2020. Calabrese had his hearing before the Senate Judiciary Committee on July 29, 2020. The committee voted 12–10 to advance Calabrese’s nomination to the full U.S. Senate on September 17, 2020.

The Northern District of Ohio has 11 judicial positions. After Calabrese receives commission, the court will have:

  • No vacancies
  • Six Democrat-appointed judges
  • Five Republican-appointed judges

Calabrese will join two other Trump-appointed judges on the court. Four judges were appointed by President Bill Clinton (D), two were appointed by President Barack Obama (D), and two were appointed by President George W. Bush (R).

Taylor McNeel was nominated to the Southern District of Mississippi court by Trump on July 2, 2020, to replace Judge Louis Guirola, who assumed senior status on March 23, 2018. McNeel had his hearing before the Senate Judiciary Committee on September 9, 2020. The committee voted 12–0 to advance McNeel’s nomination to the full U.S. Senate on October 22, 2020. No Democratic committee members were present to advance his nomination.

The Southern District of Mississippi has six judicial positions. After McNeel receives commission, the court will have:

  • No vacancies
  • One Democrat-appointed judge
  • Five Republican-appointed judges

McNeel will join one other Trump-appointed judge on the court. One judge was appointed by Obama, two were appointed by George W. Bush, and one was appointed by President Ronald Reagan (R). 

Since taking office, Trump has nominated 275 individuals to federal judgeships, 229 of whom have been confirmed. As of December 1, 2020, there were 60 vacancies in the federal judiciary with 48 pending nominations.

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