On December 6, the U.S. Supreme Court agreed to hear the case Carney v. Adams, which concerns judicial selection in Delaware, during its October 2019-2020 term. As of December 9, 2019, the court had agreed to hear 58 cases this term.
As of December 2019, when the governor of Delaware filed a petition before the U.S. Supreme Court, Article IV, Section 3 of the Delaware Constitution required that no more than the bare majority of judges on a given Delaware court could be of the same political party. A bare majority is one where the majority party has a one-seat advantage compared to the minority party. On a five-member court, for example, a bare majority would be a 3-2 majority.
James Adams, a retired lawyer, sued the governor of Delaware in federal district court. Adams argued the state’s bare majority requirement “violate[d] his First Amendment right to be considered for public office without regard to his political affiliation.” The governor, in response, argued Adams did not have the legal right to file a lawsuit. A federal magistrate judge ruled the bare majority requirement was unconstitutional.
The governor appealed to the United States Court of Appeals for the 3rd Circuit. In April 2019, a three-judge panel affirmed in part and reversed in part the federal district court’s ruling. The circuit court ruled that the bare majority provision violated the First Amendment. However, it also ruled Adams did not have the legal right, or standing, to challenge certain sections of Article IV, Section 3.
Governor John Carney (D), acting in his official capacity, filed a petition with the U.S. Supreme Court. In the petition, the governor argued the 3rd Circuit’s ruling conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit. The governor also argued SCOTUS should “reaffirm that federal courts are obligated to respect the States’ sovereign authority to structure their own governments, including by setting qualifications for state judges.”
The issues in this case are: (1) Does the First Amendment invalidate the state’s constitutional bare majority requirement? (2) Was the 3rd Circuit’s ruling in the case incorrect? (3) Does Adams have a demonstrated legal right to sue the government?
A new state legislative special election has been added to our list. The special election is for the District 171 seat in the Georgia House of Representatives on January 28, 2020. If no candidate receives a majority of the vote, a general runoff will be held on February 25 for the top two vote recipients. There is no primary, and the filing deadline is on December 18, 2019.
Runoff elections for the District II and District IV open seats on the Houston Independent School District (HISD) school board take place on December 14. The runoffs are taking place because no candidate received more than 50% of the vote during the November 5 general election.
Katherine Blueford-Daniels and John Gibbs Sr. advanced in the race for District II, defeating three other candidates. Blueford-Daniels received 42.5% of the general election vote to Gibbs’ 21.6%. As of the December 6 campaign finance deadline, Blueford-Daniels reported $39,510.00 in total political contributions for the election. Gibbs did not report any contributions.
In District IV, Patricia Allen and Matthew Barnes advanced from a four-candidate field, with Allen receiving 30.6% of the vote to Barnes’ 29.5%. Allen reported $5,690.22 in total political contributions, and Barnes reported $140,418.16.
On November 6, the day after the general election, Texas Commissioner of Education Mike Morath notified the district of his decision to appoint a board of managers to replace the elected school board. This decision came as a result of a Texas Education Agency (TEA) investigation into the board’s governance and as a result of repeatedly poor academic performance ratings at a high school in the district. Under a state-appointed board, elected board members would function as non-voting representatives until they were phased back in by the commissioner.
According to the Houston Chronicle, school board candidates and elected board members have the option to apply to be on the state-appointed board. As of December 6, Katherine Blueford-Daniels did not plan to apply for a position on the board, John Gibbs Sr. and Patricia Allen said they planned to apply, and Matthew Barnes had already applied.
Members-elect Daniela Hernandez (District III) and Judith Cruz (District VIII), who each defeated incumbents outright on November 5, wrote in the Houston Chronicle, “In Districts 3 and 8, we have a clear mandate for change by winning 64 percent of the vote over the incumbent trustees. … We ask Gov. Greg Abbott and Morath to embrace democracy and uphold the voice of the voters and appoint us to serve on the board of managers.”
HISD filed a request for a preliminary injunction to prevent state intervention on October 29. Judge Lee Yeakel of the U.S. District Court for the Western District of Texas did not issue a ruling from the bench during the December 5 hearing but stated that he would issue a written opinion as soon as possible.
As of the 2018-2019 school year, HISD was the largest school district in Texas and the seventh-largest school district in the United States, serving 209,772 students in 280 schools with a budget of $2.04 billion.
U.S. Department of Education Secretary Betsy DeVos proposed establishing a new independent federal agency to manage the federal student loan program. DeVos argued that the U.S. Department of Education’s Office of Federal Student Aid (FSA), which manages the federal government’s $1.5 trillion student loan portfolio, was not created to function as an apolitical bank, despite congressional policy expectations.
“FSA’s mission is to serve students and families, but its structure is set up to serve politicians and their policies,” DeVos told attendees at the department’s annual conference.
The proposal would move the student loan management responsibilities of the FSA to a new, independent federal agency “run by a professional, expert and apolitical board of governors,” according to DeVos.
Congressional action would be required to implement DeVos’ proposal. House Education and Labor Chairman Bobby Scott (D-Va.) issued a statement arguing that the FSA should be able to operate apolitically as it is currently structured.
An independent federal agency is an administrative agency that operates with some degree of autonomy from the executive branch. These agencies may be established outside of the Executive Office of the President or the 15 executive departments. Top officials at independent federal agencies may also have cause removal protections, which aim to insulate agencies from political interference by the president or other elected officials.
Twas the night before arguments, and all through the court, not a brief was stirring, not even about tort; the robes were hung by the bench with care, in hopes that the justices soon would be there…
Welcome to the December 9 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. While you settle your brains for a long winter nap, follow us on Twitter or subscribe to the Daily Brew to catch up on the latest political news.
We #SCOTUS, so you don’t have to
Arguments
The Supreme Court will hear arguments in six cases this week. Click here to read more about SCOTUS’ current term.
In its October 2018 term, SCOTUS heard arguments in 69 cases. Click here to read more about SCOTUS’ previous term.
Click the links below to read more about the specific cases SCOTUS will hear this week:
December 9
In Guerrero-Lasprilla v. Barr, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied the appeal. The 5th Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case is consolidated with Ovalles v. Barr. The issue: (1) Is a request for equitable tolling—in which a plaintiff can bring a claim if they did not discover an injury until after the statute of limitations had expired—judicially reviewable as a “question of law?” (2) Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a petitioner lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
In Thryv Inc. v. Click-To-Call Technologies, LP, Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the “836 Patent”). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP (“CTC”) acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board (“Board”) allowed for an inter partes review (IPR) of the patent challenge. An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Patent Trial and Appeal Board as long as the challenge is filed within a statutory time limit. CTC challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected CTC’s time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board’s grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc. The issue: Whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s one-year time bar did not apply. Title 35 U.S.C. § 314(d) reads, “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”
December 10
In Maine Community Health Options v. United States, as part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments. Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the U.S. Court of Appeals for the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress’ appropriations provisions. The case was consolidated with Moda Health Plan Inc. v. United States and Land of Lincoln Mutual Health Insurance Co. v. United States. The issue: According to Amy Howe from SCOTUSblog, “U.S. Supreme Court precedent disfavors allowing Congress to use appropriations acts to repeal laws by implication. In this case, the court will decide whether an appropriations rider may block an agency from using funds to fulfill a statutory requirement without explicitly repealing that underlying requirement.”
In Holguin-Hernandez v. U.S., Gonzalo Holguin-Hernandez pleaded guilty to violating his supervised release by committing a new offense. The U.S. District Court for the Western District of Texas revoked his term of supervised release and sentenced him to one year in prison to be served consecutively with the sentence from his new conviction. Holguin-Hernandez challenged his one-year sentence as greater than necessary under 18 U.S.C. § 3553(a). On appeal, the 5th Circuit affirmed the district court’s judgment. The issue: Whether a formal objection after the pronouncement of a sentence is necessary to invoke an appellate reasonableness review of the length of a defendant’s sentence.
December 11
Monasky v. Taglieri concerns the standard of review for “habitual residence” and how to establish “habitual residence” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction. Domenico Taglieri, an Italian, and Michelle Monasky, an American, were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit Court of Appeals, sitting en banc, affirmed the district court’s ruling. The issue: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo—without deference to a prior or lower court’s findings—as seven circuits have held; under a deferential version of de novo review, as the First Circuit has held; or under clear-error review, as the Fourth and Sixth Circuits have held. (2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.
In McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A federal district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit Court of Appeals instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentence. The issue: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted. (2) Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.
Upcoming SCOTUS dates
Here are the upcoming dates of interest in December:
December 9:
SCOTUS will release orders.
SCOTUS will hear arguments in two cases.
December 10: SCOTUS will hear arguments in two cases.
December 11: SCOTUS will hear arguments in two cases.
December 13: SCOTUS will conference. A conference is a private meeting of the justices.
SCOTUS trivia
On the Supreme Court’s traditional seal, how many stars are beneath the eagle’s claws?
Four Republican-appointed judges, and five Democrat-appointed judges.
Overall, the Senate has confirmed 172 of President Trump’s judicial nominees—120 district court judges, 48 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
Nominations
President Trump has not announced any new Article III nominees since our December 2 edition.
The president has announced 234 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.
Vacancies
The federal judiciary currently has 97 vacancies. As of publication, there were 58 pending nominations.
According to the Administrative Office of U.S. Courts, an additional 18 judges have announced their intention to leave active judicial status during Trump’s first term.
For more information on judicial vacancies during Trump’s first term, click here.
Committee action
The Senate Judiciary Committee has not reported any new nominees out of committee since our December 2 edition.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.
Or, if you prefer, we also maintain a list of individuals President Trump has nominated.
Court in the spotlight
In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.
There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.
The District of Delaware has four authorized judgeships. There are currently no vacancies. The breakdown of current active judges by appointing president is:
Barack Obama (D): Two judges
Donald Trump (R): Two judges
Looking ahead
Bold Justice will be back January 6 with more information on the federal judiciary.
… We sprang to the court, where the marshall said “oyez,” and arguments began for the day. But Ballotpedia exclaimed, ere the holidays were in sight, happy SCOTUS to all, and to all a good night!
A new state legislative special election has been added to our list. The special election is for the District 151 seat in the Connecticut House of Representatives on January 21, 2020. There is no primary or filing deadline; the candidates will be nominated directly by political parties.
On December 5, 2019, Georgia Supreme Court Justice Robert Benham announced his plans to retire on March 1, 2020.
Benham became an associate justice of the nine-member Georgia Supreme Court in 1989. He was appointed to the court in December of that year by Governor Joe Frank Harris (D). Benham served as chief justice of the court from 1995 until 2001. Benham previously served on the Georgia Court of Appeals from 1984 to 1989; Gov. Harris appointed Benham to that court in April 1984.
Benham earned his undergraduate degree in political science from Tuskegee University in 1967. He earned his J.D. from the University of Georgia’s Lumpkin School of Law in 1970. In 1989, he earned his LL.M. from the University of Virginia. He also attended Harvard University. Benham joined the U. S. Army Reserve after law school. He left the service as a Captain.
Selection of state supreme court justices in Georgia occurs through nonpartisan election of judges; however, the governor appoints judges with the help of a nomination commission in the event of a midterm vacancy. Benham’s replacement will be Governor Brian Kemp’s (R) first nominee to the nine-member supreme court. Judges serve six-year terms.
The Georgia Supreme Court is the court of last resort in the state. It currently includes the following justices:
• Justice Keith Blackwell – appointed by Gov. Nathan Deal (R)
• Robert Benham – appointed by Gov. Joe Frank Harris (D)
• Michael P. Boggs – appointed by Gov. Nathan Deal (R)
• David Nahmias – appointed by Gov. Sonny Perdue (R)
• Harold Melton – appointed by Gov. Sonny Perdue (R)
• Nels Peterson – appointed by Gov. Nathan Deal (R)
• Sarah Warren – appointed by Gov. Nathan Deal (R)
• Charlie Bethel – appointed by Gov. Nathan Deal (R)
• John Ellington – Elected
In 2020, there will be two state supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. One vacancy occurred in a state where a Republican governor appoints the replacement with the help of a nomination commission, and the other occurred in a state where a Democratic governor appoints the replacement with the help of a nomination commission.
Washington Governor Jay Inslee (D) appointed Judge Raquel Montoya-Lewis to succeed Chief Justice Mary Fairhurst on the Washington Supreme Court. Fairhurst is retiring on January 5, 2020, for health reasons. Montoya-Lewis is Inslee’s second nominee to the nine-member supreme court.
At the time of her appointment to the state supreme court, Montoya-Lewis was a judge for the Whatcom County Superior Court. Gov. Inslee appointed Montoya-Lewis to this court on December 15, 2014. Before her appointment to that court, Montoya-Lewis served as the chief judge for the Nooksack and Upper Skagit Indian Tribes in Washington. Montoya-Lewis received her undergraduate degree from the University of New Mexico. She received both her master’s degree in social work and her J.D. from the University of Washington. She is an enrolled member of the Pueblo of Isleta and a descendant of the Pueblo of Laguna Indian tribes.
In the event of a midterm vacancy, the governor appoints a replacement to the Washington Supreme Court. The appointee serves until the next general election, at which point he or she may run to serve for the remainder of the predecessor’s term. The nine justices of the supreme court compete in contested elections without reference to party affiliation and must run for re-election when their terms expire. Supreme court justices serve for six years.
Founded in 1889, the Washington Supreme Court is the state’s court of last resort and has nine judgeships. As of December 2019, three of the court’s nine justices were appointed by Democratic governors. The other six were elected by voters.
In 2019, there have been 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. Two former justices took jobs in the private sector. One vacancy occurred when a justice was elevated to chief justice of the court, one occurred when a chief justice died, and four others occurred when the justices were elevated to federal judicial positions.
Vermont Governor Phil Scott (R) nominated Judge William “Bill” Cohen to succeed Marilyn Skoglund as a justice on the Vermont Supreme Court. Skoglund retired on September 1, 2019. Cohen was Gov. Phil Scott’s (R) second nominee to the five-member supreme court.
At the time of his state supreme court appointment, Cohen was a superior court judge in Rutland County, Vermont. Governor Howard Dean appointed Cohen to the bench in 1999. Cohen was an attorney in private practice from 1986 to 1999. He was a deputy state’s attorney in Rutland County from 1984 to 1986. Cohen earned a B.A. in environmental science from George Washington University in 1980 and a J.D. from Vermont Law School in 1984.
Selection of state supreme court justices in Vermont occurs through gubernatorial appointment with state Senate confirmation. A judicial nominating commission submits a list of names to the governor, who then selects an appointee. The Vermont State Senate must also confirm the appointment. Approved nominees serve for six years, at which point they face retention by a vote of the Vermont General Assembly.
Founded in 1777, the Vermont Supreme Court is the state’s court of last resort and has five judgeships. As of December 2019, two of the court’s justices were appointed by Republican governors and two were appointed by a Democratic governor.
In 2019, there have been 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. Two former justices took jobs in the private sector. One vacancy occurred when a justice was elevated to chief justice of the court, one occurred when a chief justice died, and four others occurred when the justices were elevated to federal judicial positions.
The Massachusetts secretary of state reported receiving signatures from eight initiative campaigns on Wednesday, December 4. Wednesday was the deadline for 2020 ballot measure sponsors to submit signatures to state officials. November 20 was the preliminary deadline to submit signatures for verification to local registrars before submitting them to the secretary of state.
The number of verified signatures needed to qualify for the ballot is 80,239, which equals 3% of the votes cast in the last gubernatorial election. Four campaigns reported submitting more than the required amount:
Massachusetts Right to Repair Coalition reported submitting 102,000 signatures in support of an initiative that would broaden access to mechanical data in a vehicle’s on-board diagnostics or telematics system.
Massachusetts Senior Coalition reported submitting 87,000 signatures in support of an initiative that would change the formula for Medicaid ratemaking for nursing homes.
Voters Choice for Massachusetts, which is sponsoring a ranked-choice voting measure, reported submitting 110,584 signatures.
The sponsors of an initiative backed by Cumberland Farms that would allow food stores to sell beer and wine reported submitting 130,000 signatures.
The sponsors of two initiatives regarding the treatment of the disabled reported submitting signatures to the secretary of state, but it was not clear as of December 5 if they submitted at least the minimum required number of signatures.
Proponents of two initiated constitutional amendments reported submitting an insufficient number of signatures. These initiatives were the Massachusetts No Right to Public Funding for Abortion Initiative and the Massachusetts Voting Rights Restoration for Incarcerated Felons Initiative.
If enough signatures are submitted in this first round, the legislature must act on a successful petition by May 6, 2020. If the legislature fails to adopt the proposed law, petitioners then have until July 1, to request additional petition forms and submit the second round of 13,374 signatures. If successful in that second round, the initiative will be placed on the 2020 ballot.
