Senate Secrecy: Can the Votes of Senators on President Trump’s Impeachment be Withheld from the Voting Public?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone evaluate the suggestion made by some that the votes of senators on President Trump’s impeachment can and should be private. Amar and Mazzone argue that while the text of the Constitution alone does not foreclose secrecy, structural, prudential, and logistical considerations strongly disfavor a secret vote on the matter.

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Buchholz v. Meyer Njus Tanick, PA

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-2261

Opinion Date: January 3, 2020

Judge: Nalbandian

Areas of Law: Civil Procedure, Consumer Law

Buchholz received two letters about overdue payments he owed on credit accounts. The letters came from MNT law firm, on MNT’s letterhead. Each referred to a specific account but the content is identical except for information regarding that specific account. MNT attorney Harms signed both letters; Buchholz alleges that MNT must have inserted “some sort of pre-populated or stock signature.” The letters do not threaten legal action but purport to be communications from a debt collector and explain that MNT has been retained to collect the above-referenced debts. Buchholz alleges that he felt anxiety that he would be subjected to legal action if prompt payment was not made and sued under the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, e(3), and e(10), asserting that MNT processes such a high volume of debt-collection letters that MNT attorneys cannot engage in meaningful review of the underlying accounts. The Sixth Circuit affirmed the dismissal of the complaint for lack of standing. Buchholz has shown no injury-in-fact that is traceable to MNT’s challenged conduct. Buchholz’s allegation of anxiety falls short of the injury-in-fact requirement; it amounts to an allegation of fear of something that may or may not occur in the future. Buchholz is anxious about the consequences of his decision to not pay the debts that he does not dispute he owes; if the plaintiff caused his own injury, he cannot draw a connection between that injury and the defendant’s conduct.

Hamama v. Adducci

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1080

Opinion Date: January 3, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Civil Procedure, Class Action, Immigration Law

The federal government entered final removal orders against about 1,000 Iraqi nationals in 2017, and has detained them or will detain them. Most remain in the U.S. due to diplomatic difficulties preventing their return to Iraq. The district court certified three subclasses: (1) primary class members without individual habeas petitions who are or will be detained by ICE, (2) those in the first subclass who are also subject to final removal orders, and (3) those in the first subclass whose motions to reopen their removal proceedings have been granted and who are being held under a statute mandating their detention. The Sixth Circuit previously vacated two preliminary injunctions, citing lack of jurisdiction under 8 U.S.C. 1252(g) and (f)(1). One prevented the removal of certain Iraqi nationals; another required bond hearings for each class member who had been detained for at least six months. A third injunction requires the government to release all primary subclass members, those in the first subclass, once the government has detained them for six months, no matter the statutory authority under which they were held. The district court concluded that the class members showed that the government was unlikely to repatriate them to Iraq in the reasonably foreseeable future and that the government “acted ignobly.” The Sixth Circuit vacated the injunction. Congress stripped all courts, except the Supreme Court, of jurisdiction to enjoin or restrain the operation of 8 U.S.C. 1221–1232 on a class-wide basis.

Hueso v. Barnhart

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-6299

Opinion Date: January 9, 2020

Judge: Murphy

Areas of Law: Civil Procedure, Constitutional Law, Criminal Law

In 2010, Hueso was sentenced to 20 years’ imprisonment for drug crimes. In 2013, Hueso unsuccessfully moved to vacate his sentence under 28 U.S.C. 2255. His second unsuccessful petition, in 2018, argued that his state convictions were not “felony drug offenses” and that his mandatory minimum should have been 10 years. A 2019 Ninth Circuit case subsequently undercut the substantive portion of the district court’s denial of relief. Hueso filed another petition. The Antiterrorism and Effective Death Penalty Act of 1996 permits a second 2255 motion only if there is new evidence of innocence or a new rule of constitutional law from the Supreme Court. Prisoners seeking relief under 28 U.S.C. 2241 must show that section 2255 is “inadequate or ineffective to test the legality of [their] detention.” Hueso argued that prisoners barred from filing a second 2255 motion may seek habeas relief under section 2241 based on new circuit court decisions. The Fourth Circuit has accepted that position. The Sixth Circuit affirmed the denial of relief. Hueso’s cited circuit court cases do not render a 2255 motion “inadequate or ineffective” within the meaning of section 2255(e); the two circuit decisions cannot establish section 2255’s inadequacy and his cited Supreme Court decision issued when his direct appeal was pending, so he could have cited it in the ordinary course.

Whaley v. Esebag

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3236

Opinion Date: January 7, 2020

Judge: Erickson

Areas of Law: Civil Procedure

The Eighth Circuit reversed the district court's dismissal, based on lack of personal jurisdiction, of plaintiffs' action against defendants over a dispute involving an investment agreement. The court held that defendants had sufficient contacts with Arkansas to establish personal jurisdiction in light of the nature and quality of contacts with the forum state, the quality of contacts, the relation of the cause of action to the contacts, the interest of forum state, and the convenience of the parties. In this case, the court held that the first and third factors weigh in favor of personal jurisdiction, while the second, third, and fourth factors were more neutral. The court found that personal jurisdiction applies to the claims asserted against both Defendants Esebag and ULG, and thus Esebag's actions were sufficient to bind the company and assert personal jurisdiction over ULG without violating the traditional notions of fair play and substantial justice.

Dental Dynamics v. Jolly Dental Group

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-6107

Opinion Date: January 9, 2020

Judge: Timothy M. Tymkovich

Areas of Law: Business Law, Civil Procedure, Contracts

At issue in this case was whether a federal court sitting in Oklahoma had specific jurisdiction over Dr. Scott Jolly, a dentist and Arkansas resident, and his Limited Liability practice, Jolly Dental Group, LLC. Dental Dynamics, LLC argued that three isolated business transactions and an allegedly fraudulent contract were sufficient to establish federal court jurisdiction over its breach of contract and fraud claims. The Tenth Circuit disagreed, finding Jolly Dental's contacts with Oklahoma were "too random, fortuitous, and attenuated" to establish personal jurisdiction there. With respect to Denta; Dynamics' fraud claim, the Court concluded Dental Dynamics failed to show conduct sufficiently targeted to Oklahoma to establish personal jurisdiction there.

Murphy-Sims v. Owners Insurance Company

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1392

Opinion Date: January 7, 2020

Judge: Paul Joseph Kelly, Jr.

Areas of Law: Arbitration & Mediation, Civil Procedure, Insurance Law, Personal Injury

Plaintiff-Appellant Luzetta Murphy-Sims appealed after a jury ruled in favor of Defendant-Appellee Owners Insurance Company (Owners) on her complaint against Owners' insured stemming from a car accident. The insured was at fault; Murphy-Sims maintained that she suffered extensive injuries, and consequently incurred significant medical costs, as a result of the accident. In February 2014, she sent Owners a letter demanding settlement claiming $41,000 in medical expenses. Owners timely replied with a request for more information. When Murphy-Sims failed to reply, Owners sent two additional follow-up requests. Finally, in June 2014, Murphy-Sims provided Owners with some of the requested information. It did not offer a settlement payment in response. In July 2014, Murphy-Sims sued the insured. The parties agreed roughly three weeks later to enter into a Nunn agreement, which bound the matter over to binding arbitration. The arbitrator awarded Murphy-Sims approximately $1.3 million and judgment was entered against the insured. Pursuant to the agreement, Murphy-Sims did not execute on the judgment. In March 2016, Murphy-Sims, standing in the insured's shoes as permitted under the Nunn agreement, filed the underlying lawsuit against Owners in state district court, claiming Owners breached its contract with Switzer and had done so in bad faith. Owners removed the suit to federal court and the case proceeded to trial. The jury ultimately found that Owners did not breach its contract with the insured, thereby declining to award $1.3 million in damages to Murphy-Sims. The jury did not reach the bad faith claim having been instructed that it need not be reached in the absence of a breach of contract. After review of Murphy-Sims arguments on appeal, the Tenth Circuit determined the district curt committed no reversible error, and affirmed its judgment.

Ogawa v. Kang

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-4082

Opinion Date: January 6, 2020

Judge: Moritz

Areas of Law: Civil Procedure, Family Law, International Law

Japanese national Takeshi Ogawa brought a Hague Convention action against his former wife, South Korean national Kyong Kang, alleging that she wrongfully removed their twin daughters from Japan to the United States in violation of his rights of custody and seeking an order requiring the twins to return to Japan. The district court disagreed and denied Ogawa’s petition, concluding that: (1) the twins’ removal to the United States did not violate Ogawa’s rights of custody, and alternatively, (2) even if their removal was wrongful, the twins objected to returning to Japan. Ogawa appealed. After review, the Tenth Circuit Court of Appeals determined Ogawa failed to make a prima facie showing that he had any rights of custody as the Convention defined them. Accordingly, it affirmed the district court’s order.

U.S. Commodity Futures Trading Commissioner v. Escobio

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 16-16544, 19-11027

Opinion Date: January 6, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

This case involved the enforcement of a judgment CFTC obtained against defendant which, among other things, ordered defendant to pay $1,543,892 within 10 days in restitution to the investors who fell victim to his commodity-fraud scheme. The Eleventh Circuit vacated the district court's contempt adjudication and its modification of the restitution provisions of its judgment, holding that those provisions constitute a money judgment enforceable under the Federal Debt Collection Procedures Act, but not by the district court's civil contempt power. Therefore, the court need not consider defendant's arguments that the district court erred in considering exempt assets or defendant's wife's income in its determination of defendant's ability to pay.

Andrew M. v. Superior Court of Contra Costa County

Court: California Courts of Appeal

Docket: A158129(First Appellate District)

Opinion Date: January 6, 2020

Judge: Barbara J.R. Jones

Areas of Law: Civil Procedure, Criminal Law, Juvenile Law

Shortly before turning 18 Andrew committed an armed robbery; his accomplice shot and killed a police officer. After his conviction, Judge Brady sentenced Andrew to life in prison without the possibility of parole (LWOP), plus 24 years. The court of appeal reversed one special circumstance. On remand, Judge Brady sentenced Andrew to LWOP plus 24 years. After a second remand following the U.S. Supreme Court's Miller decision (2012), Judge Brady imposed LWOP plus 23 years, finding Andrew’s actions “were not those of an irresponsible or impulsive child," nor the product of peer pressure, coercion, or surprise and finding no realistic chance of rehabilitation. The court of appeal affirmed. The California Supreme Court returned the case with directions to consider whether legislation rendering juvenile LWOP defendants eligible for parole suitability hearings mooted Andrew’s challenge. While Andrew’s appeal was pending Proposition 57 eliminated a prosecutor’s ability to “direct file” charges in criminal court against minors of a certain age. These minors may be tried in criminal court only after the juvenile court conducts a transfer hearing to consider specific factors. The court rejected Andrew’s LWOP challenge but concluded he was entitled to a Proposition 57 hearing. The superior court granted the prosecution's motion to assign that hearing to Judge Brady. The court of appeal rejected a mandamus petition. A conditional reversal and limited remand for a Proposition 57 transfer hearing are not a “new trial” under Code of Civil Procedure section 170.61, which permits parties in civil and criminal actions to move to disqualify an assigned trial judge based on an allegation that the judge is prejudiced against the party.

Dalessandro v. Mitchell

Court: California Courts of Appeal

Docket: B293472(Second Appellate District)

Opinion Date: January 3, 2020

Judge: Tricia A. Bigelow

Areas of Law: Civil Procedure, Legal Ethics

Plaintiff and his counsel appealed from a postjudgment order denying plaintiff's motion to compel the production of documents and imposing $3,456.70 in sanctions against counsel for discovery abuses. The underlying action involved residual payments owed by defendant to plaintiff. The Court of Appeal denied the petition challenging the motion to compel the production of documents, and affirmed the imposition of $3,456.70 in sanctions against counsel. The court held that, although plaintiff lacked standing, counsel had standing to appeal the order and was properly an appellant in this matter. The court also held that the trial court did not err in denying the motion to compel; rejected challenges to the monetary sanctions levied against counsel; held that a separate motion is not required, nor is a separate hearing on discovery sanctions; and held that the trial court did not err in awarding discovery sanctions representing fees and costs incurred.

Safechuck v. MJJ Productions, Inc.

Court: California Courts of Appeal

Dockets: B284613(Second Appellate District) , B288036(Second Appellate District)

Opinion Date: January 3, 2020

Judge: Tricia A. Bigelow

Areas of Law: Civil Procedure

Wade Robson and James Safechuck filed suit against two of Michael Jackson's corporations, MJJ Productions, Inc. and MJJ Ventures, Inc., for their involvement in Jackson's alleged sexual abuse of Robson and Safechuck. Plaintiffs filed suit after their 26th birthdays, and the trial court concluded their claims were untimely because they did not fall within the narrow exception of Code of Civil Procedure section 340.1. However, effective January 1, 2020, section 340.1 was amended to allow a victim to bring claims of childhood sexual assault against third-party nonperpetrators until the victim's 40th birthday. The Court of Appeal reversed the judgments in the corporations' favor and held that the extended limitations period of the revised section 340.1 applied to render plaintiffs' claims timely. In this case, plaintiffs filed their lawsuits before their 40th birthdays and their cases remained pending on appeal. Therefore, they have not reached finality. Accordingly, the court remanded for further proceedings.

Shayan v. Spine Care and Orthopedic Physicians

Court: California Courts of Appeal

Docket: B293857(Second Appellate District)

Opinion Date: January 9, 2020

Judge: Wiley

Areas of Law: Civil Procedure

After plaintiff filed an interpleader action to resolve claims about a disputed $19,365 sum, two claimants and defendants failed to appear after having received notice of the trial date. The trial court adjudicated the case on the merits and entered judgment. Claimants then filed a motion for relief under the mandatory provision of subdivision (b) of section 473 of the Code of Civil Procedure. The Court of Appeal affirmed the trial court's denial of claimants' motion, holding that the provision for mandatory relief does not apply absent an actual default, default judgment or dismissal. In this case, the trial court decided the case on the merits.

Warwick California Corp. v. Applied Underwriters, Inc.

Court: California Courts of Appeal

Docket: A155523(First Appellate District)

Opinion Date: January 7, 2020

Judge: Tucher

Areas of Law: Civil Procedure

Six companies affiliated with Warwick Hotels sued companies affiliated with Applied Underwriters, claiming breach of contract and fraud and unfair business practices relating to the purchase of workers’ compensation insurance. Applied moved to stay the action under Code of Civil Procedure 418.10; the parties’ agreement required that claims relating to the agreement be filed in Nebraska, where Applied was incorporated. Applied argued that Warwick’s workers’ compensation program involved employees in New York, Colorado, Texas, and California, and that “[t]he California portion ... was . . . by far the smallest component, representing only 5 percent of the total payroll at issue.” The court stayed the action as to all plaintiffs except two Warwick companies that are incorporated in California. A subsequent statement of decision (SOD) stated: "this trial was limited to Warwick’s California entities only, and the trial determined that damages cannot be 'allocated or apportioned between California and non-California Warwick entities.’ Because both sides failed to prove the essential element of damages, their arguments on other elements of contract breach need not be reached.” The court of appeal dismissed an appeal. The SOD is not a judgment or an appealable order. The court indicated that judgment cannot be entered until other issues are decided in their proper forum. Once that happens, the stay can be lifted, a final judgment can be entered, and the parties can appeal.