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SCOTUS issues two unanimous opinions

The U.S. Supreme Court issued two unanimous opinions this week – Henry Schein Inc. v. Archer and White Sales Inc., and Culbertson v. Berryhill. Last term, the justices issued 20 unanimous opinions.
 
In Henry Schein Inc. v. Archer and White Sales Inc., the court considered a case regarding the Federal Arbitration Act. In his first opinion for the court, Justice Brett Kavanaugh vacated and remanded the ruling of the United States Court of Appeals for the Fifth Circuit.
 
In Culbertson v. Berryhill, the court considered a question concerning Social Security and attorney fees. The court unanimously reversed and remanded the ruling of the Eleventh Circuit Court.
 
The justices have granted cert in 65 cases and have issued decisions in seven of them. They have 26 cases remaining on their argument schedule.


Date set for Pennsylvania State Senate special election

A special election has been called for the District 37 seat of the Pennsylvania State Senate on April 2, 2019. This is the third special state legislative election scheduled in Pennsylvania this year; Pennsylvania House Districts 114 and 190 are up for election on March 12.
 
District 37 was left vacant after its previous officeholder, Guy Reschenthaler (R), was elected to represent Pennsylvania’s 14th Congressional District in the U.S. House on November 6, 2018.
 
Candidates running for special elections in Pennsylvania are selected by their respective political parties. Independent candidates can file a petition with the state to run in a special election. The deadline for party nominations and independent petition filing is February 11, 2019.


Four candidates file to run in Georgia House special election

The candidate filing deadline passed on January 8 for the special election in District 176 of the Georgia House of Representatives. Barbara Griffin (D), Barbara Seidman (D), James Burchett (R), and Franklin Patten (R) filed to run in the special election being held on February 12. If no candidate receives a majority of the vote, a runoff will be held between the top two candidates on March 12.
 
District 176 became vacant after Jason Shaw (R) was appointed to serve the remainder of H. Doug Everett’s term on the Georgia Public Service Commission, beginning January 1, 2019. Shaw was elected to District 176 in 2010, which was also the only year in which he faced general election opposition. He won in 2010 with 69 percent of the vote.
 
The Georgia House of Representatives currently has 64 Democrats, 112 Republicans, and four vacancies. Another special election is being held in District 5, which has gone to a runoff scheduled for February 5. Georgia has a Republican trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.
 
In 2019, 21 state legislative special elections have been scheduled or held in 11 states. Between 2011 and 2018, an average of 77 special elections took place each year.


Six candidates file to run in Minnesota State Senate special election

The candidate filing deadline passed on January 8 for the special election in District 11 of the Minnesota State Senate. Michelle Lee and Stu Lourey will face off in the Democratic primary on January 22. Justin Krych, Carl Pederson, Jason Rarick, and Matthias Shir are running in the Republican primary. The general election will take place on February 5.
 
District 11 became vacant when Tony Lourey (D) resigned in January 2019 after Gov. Tim Walz (D) appointed Lourey to serve as human services commissioner. Lourey was elected to District 11 in 2006. He last won re-election in 2016 with 55 percent of the vote. Stu Lourey is his son.
 
The Minnesota State Senate currently has 32 Democrats, 34 Republicans, and one vacancy. Minnesota currently operates under divided government. Republicans control the state senate, Democrats gained control of the state house in the 2018 elections, and the governorship is held by Tim Walz (D).
 
In 2019, 21 state legislative special elections have been scheduled or held in 11 states. Between 2011 and 2018, an average of 77 special elections took place each year.


Kentucky governor to face at least seven challengers in 2019

Democrats and Republicans are lining up to challenge Kentucky Gov. Matt Bevin (R) in his 2019 re-election bid. The incumbent closed out 2018 with a 34 percent approval rating—the lowest of any governor who is set to remain in office after the 2018 midterm elections.
 
Four Democratic candidates have announced they are running for governor: Kentucky House Minority Leader Rocky Adkins, state Attorney General Andy Beshear, former state Auditor Adam Edelen, and retired engineer Geoff Young.
 
Beshear, the son of Kentucky’s last Democratic governor, Steve Beshear, was the first to announce his candidacy last year. He entered 2019 with the most cash on hand with more than $850,000.
 
Adkins, who has been in the state legislature for three decades, is counting on his eastern Kentucky background and support for coal to appeal to rural voters across the state. Adkins was re-elected to the state legislature in 2016 with 66 percent of the vote, even as his county backed Donald Trump (R) for president.
 
Bevin also faces a challenge from within his own party. State Rep. Robert Goforth announced he was entering the Republican primary with Lawrence County attorney Mike Hogan as his running mate on Tuesday. Goforth is a relative newcomer to politics, having first been elected to serve in the Kentucky House of Representatives in a special election in February 2018.
 
U.S. Rep. James Comer, who lost to Bevin in the 2015 Republican gubernatorial primary by 83 votes, also said he would run for the office if Bevin decided not to seek re-election. Although Bevin has repeatedly said he intends to run again, he has not yet filed paperwork to do so.
 
Truck driver Bryan Messenger and manager William Woods are also running in the Republican primary.
 
The filing deadline for candidates is January 29, 2019.


Government shutdown delays comment period for Trump administration’s “Waters of the U.S.” proposal

The federal government shutdown has delayed a comment period for a proposed rule that the Environmental Protection Agency (EPA) announced in December. The rule would replace the Clean Water Act’s definition of “waters of the United States” set by the Obama administration in 2015. The EPA aims to clarify the difference between federally-protected waterways and state-protected waterways, which it says will help landowners determine whether they need a federal permit to do projects on their property. The EPA has decided to wait until Congress funds the agency to begin a 60-day comment period during which the public may submit written feedback about the rule.
 
Proposed rules are preliminary versions of a prospective federal agency regulation. If an agency determines that a new regulation is necessary, the agency develops a proposed rule for publication in the Federal Register. After a period of public comment, the agency may determine to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.


Florida governor makes first state supreme court appointment

Florida Gov. Ron DeSantis (R) appointed Florida Third District Court of Appeal Judge Barbara Lagoa to succeed Fred Lewis on the Florida Supreme Court. Lewis retired from the court on January 7 after reaching the mandatory retirement age. Lagoa is DeSantis’ first appointment to the seven-member court. Her appointment is effective immediately.
 
Lagoa was a judge on the Florida Third District Court of Appeal from 2006 to 2019. She was appointed to the appellate court by Gov. Jeb Bush (R) in June 2006. She worked as an assistant U.S. attorney in the U.S. Attorney’s Office for the Southern District of Florida from 2003 to 2006.
 
Lagoa graduated from Florida International University in 1989 and received her J.D. from Columbia University in 1992. During her legal studies, Lagoa served on the Columbia Law Review.
 
Retiring Justice Lewis was an associate justice of the Florida Supreme Court from 1998 to 2019. Gov. Lawton Chiles (D) appointed Lewis to the court. He served as chief justice of the court from 2006 to 2008.
 
Two supreme court seats remain vacant following the January 7 retirements of Justices Peggy Quince and Barbara Pariente.


U.S. Supreme Court declines to hear state-led lawsuits against California’s and Massachusetts’ meat and egg sale ballot initiatives

On January 8, 2019, the U.S. Supreme Court declined to hear cases regarding whether ballot initiatives and related legislation in California and Massachusetts designed to regulate the sale of animal products violate the Commerce Clause of the U.S. Constitution. The court did not issue a reason for declining the cases, but Justice Clarence Thomas said he would have granted hearings.
 
The cases involved California AB 1435—which was designed to enforce provisions of Proposition 2 (2008)—and Massachusetts Question 3 (2016). The cases also had implications for California Proposition 12 (2018).
 
California Proposition 2 banned the confinement of pregnant pigs, calves raised for veal, and egg-laying hens in a manner that did not allow them to turn around freely, lie down, stand up, and fully extend their limbs. The California State Legislature approved a law, AB 1435, that banned the sale of shelled eggs from hens confined to areas that did not meet Proposition 2’s standards. In 2014, 13 states sued California, saying that farmers located in their states needed to either increase production costs to meet the proposition’s requirements or forgo selling eggs on the market in California. AB 1435, according to plaintiffs, had a substantial burden on interstate commerce. The Ninth Circuit Court of Appeals ruled in favor of California in 2016, with the court’s opinion saying that the plaintiff states failed to demonstrate that the law impacted them as states and their residents, rather than just egg producers.
 
Massachusetts Question 3 banned the confinement of pregnant pigs, calves raised for veal, and egg-laying hens based on movement requirements. Question 3 banned the sale of animal products from animals confined in spaces in violation of the ballot measure. In December 2017, 13 states asked the Supreme Court for permission to file a complaint against Massachusetts, saying Question 3 “dictate[d] how other states choose to regulate business operations and manufacturing processes within their own borders.”
 
The Supreme Court’s decision not to take up the cases is good news for California Proposition 12 (2018), according to the Humane Society, which sponsored the ballot initiative. Proposition 12, like AB 1435 and Question 3, prohibited the sale of veal from calves, pork from breeding pigs, and eggs from hens when the animals are confined to areas below certain minimum size requirements.
 


Florida Supreme Court dismisses a decade-old lawsuit claiming the state’s education system violated Amendment 6 of 1998

The Citizens for Strong Schools v. Board of Education lawsuit was filed on November 18, 2009, in the Leon County Circuit Court alleging the state failed to “make adequate provision for a uniform, efficient, safe, secure, and high-quality system of free public schools that allows students to obtain a high-quality education” as mandated by Amendment 6 of 1998.

On January 4, 2019, the Florida Supreme Court rejected the lawsuit, ruling that the judicial branch lacks the competence or authority to make funding and policy decisions.

Amendment 6 was on the ballot on November 3, 1998, when it was approved by a vote of 71 percent to 29 percent. The measure was referred to the ballot by the Florida Constitutional Revision Commission (CRC), which meets every 20 years on the following schedule: 1977, 1997, 2017, 2037, 2057, and so on. Amendment 6modified Article IX of the Florida Constitution to declare it “a paramount duty of the state” to provide for the education of children. Amendment 6 was one of nine ballot measures placed on the 1998 Florida ballot by the Florida Constitution Revision Commission.

Florida Supreme Court Chief Justice Charles Canady, Justice Alan Lawson and Associate Justice Edward LaRose said plaintiffs failed “to present any manageable standard by which to avoid judicial intrusion into the powers of the other branches of government.” Chief Justice Charles Canady said, “The judiciary is very good at making certain types of decisions — that is, judicial decisions— but it lacks the institutional competence — or the constitutional authority — to make the monumental funding and policy decisions that [the plaintiffs] seek to shift to the judicial branch.”

 

In the dissenting opinion, Justice Pariente wrote, “the majority of this Court fails to provide any judicial remedy for the students who are at the center of this lawsuit […] the citizens of this state intended for compliance — or noncompliance — with that provision to be adjudicated by the judiciary when properly brought to the court. Indeed, the task of construing the Constitution and determining whether the state is fulfilling its express obligations required by the Constitution — and the citizens of this state who approved the relevant constitutional language — is solely the judiciary’s task.”

The Florida Constitution Revision Commission convened in 2017 and referred eight constitutional amendments to the 2018 ballot. One was blocked from the ballot by a Florida Supreme Court ruling. The other seven were approved by voters.

Lawsuit timeline

Following is a timeline of the lawsuit from its 2009 filing to the 2019 state supreme court ruling:

  • January 4, 2019: Florida Supreme Court rejected the lawsuit on the grounds that the judicial branch lacks the competence or authority to make funding and policy decisions
  • November 8, 2018: Florida Supreme Court agreed to hear the case after asked by attorneys for Citizens for Strong Schools
  • March 2016: Trial held at the Leon County circuit court, where presiding judge George S. Reynolds, III dismissed the case, ruling that plaintiffs failed to prove that the state failed to meet their obligations mandated by Amendment 6 under Article IX
  • September 11, 2012: The Florida Supreme Court declined to accept jurisdiction and sent the case back to the Leon County circuit court
  • November 2011: The First District Court of Appeals panel of 15 judges voted 8 to 7 to deny the Writ of Prohibition and certify the suit as a “question of public importance,” which sent the case to the Florida Supreme Court
  • June 30, 2011: Hearing took place after the state appealed the denied Motion to Dismiss by filing an Extraordinary Writ of Prohibition, arguing that the courts have no authority to rule on the actions of the legislature
  • August 27, 2010: Circuit Judge Jackie Fulford denied the State of Florida’s Motion to Dismiss and ruled that the plaintiffs in the case had standing
  • November 18, 2009: Lawsuit filed in Leon County circuit court


Previewing 2019’s state executive races

Kentucky, Louisiana, and Mississippi are the only three states holding regularly-scheduled elections for state executive positions in 2019. All three states have governor, lieutenant governor, attorney general, secretary of state, agriculture commissioner, and treasurer offices on the ballot. Other state executive positions up for election include auditor in Kentucky and Mississippi, insurance commissioner in Louisiana and Mississippi, and public service commissioner in Mississippi. In total, 23 executive positions are on the ballot. There were 303 state executive seats up for election across 43 states in 2018.
 
Two of the sitting governors, Matt Bevin (R) in Kentucky and John Bel Edwards (D) in Louisiana, are completing their first terms. Bevin announced in August 2018 that he plans to run for re-election but has not filed to do so yet. Edwards is also running for re-election to a second term. In Mississippi, Gov. Phil Bryant (R) was first elected in 2011 and re-elected in 2015. He is ineligible to run for re-election due to term limits, which leaves an open seat.
 
Following the 2018 election, there are 27 Republican governors and 23 Democratic governors across the United States. There were 36 governorships on the ballot in 2018, and there are another 11 up for election in 2020. Of the 14 governor’s offices up for election across 2019 and 2020, nine are currently held by Republicans. Only one of those 14 elections have received a toss-up rating from Sabato’s Crystal Ball, however, and that is the Montana seat currently held by term-limited Gov. Steve Bullock (D) and up for election in 2020. The Cook Political Report did not identify any of the races as a toss-up; they rated the Montana race as Leans Democratic as of January 9, 2019.
 
The 2019 state executive filing deadlines are January 29 in Kentucky, March 1 in Mississippi, and August 8 in Louisiana. The primaries are on May 21 in Kentucky, August 6 in Mississippi, and October 12 in Louisiana. Mississippi will hold primary runoffs on August 27 if no primary candidate receives a simple majority of the vote. General elections will occur on November 5 in Kentucky and Mississippi and November 16 in Louisiana.


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