Double Jeopardy: Answers to Six Questions About Donald Trump’s Second Impeachment Trial

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, addresses six key questions about Donald Trump’s second impeachment trial. Falvy provides clear and supported answers to frequently asked questions such as whether the Senate can act to remove Trump from the presidency, whether it can hold a trial after his term expires, who should preside, and whether he will lose his presidential perks.

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Hurd v. Fredenburgh

Court: US Court of Appeals for the Second Circuit

Docket: 19-3482

Opinion Date: January 12, 2021

Judge: Richard C. Wesley

Areas of Law: Civil Procedure, Constitutional Law

Plaintiff filed suit against defendant, a New York State prison official, alleging that she violated his Eighth and Fourteenth Amendment rights by keeping him imprisoned based upon sentencing errors that incarcerated him for almost a year past the date on which state law mandated his release. The Second Circuit affirmed the district court's dismissal of the complaint, but agreed with the district court's reasoning only in part. The court held that, contrary to the district court's determination, plaintiff alleged a harm of constitutional magnitude under the Eighth Amendment because New York State lacked authority to detain him past his mandatory conditional release date. The court also held that plaintiff has a liberty interest in his right to conditional release protected by the Fourteenth Amendment's substantive due process clause, and the district court erred in concluding otherwise. Because neither of these rights was clearly established at the time, the court held that defendant is entitled to qualified immunity for any responsibility she may have had for plaintiff's prolonged detention.

Big Tyme Investments, L.L.C. v. Edwards

Court: US Court of Appeals for the Fifth Circuit

Dockets: 20-30526, 20-30537

Opinion Date: January 13, 2021

Judge: Stephen Andrew Higginson

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

Louisiana bar owners challenged the Governor’s restrictions to the operation of bars in response to COVID-19. The Bar Closure Order prohibited on-site consumption of alcohol and food at “bars,” but permitted on-site consumption of alcohol and food at “restaurants.” Two district courts denied the bar owners’ motions for preliminary injunctive relief. The Fifth Circuit affirmed, rejecting an argument under the Equal Protection Clause of the Fourteenth Amendment. The court applied “rational basis” review. The classification at issue is based on a business permit, and does not differentiate on the basis of a suspect class. The Bar Closure Order’s differential treatment of bars operating with AG permits is at least rationally related to reducing the spread of COVID-19 in higher-risk environments. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.

Thornley v. Clearview AI, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-3249

Opinion Date: January 14, 2021

Judge: Diane Pamela Wood

Areas of Law: Civil Procedure, Internet Law

Clearview's facial recognition tool takes advantage of public information on the Internet. Clearview uses a proprietary algorithm to “scrape” pictures from social media sites such as Facebook, Twitter, Instagram, LinkedIn, and Venmo. Clearview’s software harvests from each scraped photograph the biometric facial scan and associated metadata (time and place stamps); that information is put onto its database, which is stored on servers in New York and New Jersey. Clearview offers access to this database for users who wish to find out more about someone in a photograph. Many of its clients are law-enforcement agencies. The New York Times published an article about Clearview. This putative class action asserted violations of Illinois’s Biometric Information Privacy Act, 740 ILCS 14/15. After its removal to federal court, the district court remanded the case to state court, stating that the complaint alleged only a bare statutory violation, not the kind of concrete and particularized harm that would support Article III standing in federal court. The Seventh Circuit affirmed. In alleging a violation of a general rule that prohibits the operation of a market in biometric identifiers and information, the complaint described only a general, regulatory violation, not something that is particularized to the plaintiffs and concrete. It alleged no particularized injury resulting from the commercial transaction.

Parker Law Firm v. The Travelers Indemnity Co.

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2619

Opinion Date: January 12, 2021

Judge: Steven M. Colloton

Areas of Law: Civil Procedure

This case arose from an ongoing dispute about whether plaintiffs had a contractual obligation to provide PS Finance with certain payments that plaintiffs received on behalf of a client. The Eighth Circuit held that the district court properly dismissed the claims against PS Finance based on the Rooker-Feldman doctrine. In this case, plaintiffs brought these claims in Arkansas after the New York court already ruled that whether plaintiffs owe money to PS Finance is a matter subject to arbitration. The court explained that, by proceeding with the claims in the district court, plaintiffs necessarily asked the federal court to review and reject the New York court's ruling that claims concerning amounts owed under the contract must be resolved in arbitration.

Greenberg v. Target Corp.

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-16699

Opinion Date: January 13, 2021

Judge: Lee

Areas of Law: Civil Procedure, Consumer Law, Drugs & Biotech

To fight his hair loss, Greenberg bought an $8 bottle of biotin. The product label states that biotin “helps support healthy hair and skin” and has an asterisk that points to a disclaimer: “This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.” A Supplement Facts panel on the bottle states that the biotin amount in the product far exceeds the recommended daily dosage. Greenberg filed a putative class action under California’s Unfair Competition Law, alleging that the labels are deceptive because most people do not benefit from biotin supplementation. The panel affirmed summary judgment in favor of the manufacturer and distributors. The plaintiff’s state law claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA), under which the FDA requires that dietary supplement labels be truthful and not misleading; 21 U.S.C. 343(r)(6)(B) authorizes several categories of statements, including disease claims and structure/function claims. The FDCA includes a preemption provision to establish a national, uniform standard for labeling. The challenged statement was a permissible structure/function claim. There was substantiation that biotin “helps support healthy hair and skin”; that statement was truthful and not misleading. The label had the appropriate disclosures and did not claim to treat diseases. The state law claims amounted to imposition of different standards from the FDCA.

Ahmasuk v. Division of Banking and Securities

Court: Alaska Supreme Court

Docket: S-17414

Opinion Date: January 8, 2021

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Securities Law

The Alaska Division of Banking and Securities civilly fined Sitnasuak Native Corporation shareholder Austin Ahmasuk for submitting a newspaper opinion letter about Sitnasuak’s shareholder proxy voting procedures without filing that letter with the Division as a shareholder proxy solicitation. Ahmasuk filed an agency appeal, arguing that the Division wrongly interpreted its proxy solicitation regulation to cover his letter and violated his constitutional due process and free speech rights. An administrative law judge upheld the Division’s sanction in an order that became the final agency decision, and the superior court upheld that decision in a subsequent appeal. Ahmasuk raised his same arguments on appeal to the Alaska Supreme Court. After review, the Supreme Court concluded Ahmasuk’s opinion letter was not a proxy solicitation under the Division’s controlling regulations, therefore reversing the superior court’s decision upholding the Division’s civil sanction against Ahmasuk without reaching the constitutional arguments.

City of Norco v. Mugar

Court: California Courts of Appeal

Docket: E072858(Fourth Appellate District)

Opinion Date: January 8, 2021

Judge: Raphael

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Plaintiff-respondent City of Norco (City) filed a receivership action to abate what it described as “nearly 20 life-safety hazards” on a property belonging to defendant-appellant Ronald Mugar. During the litigation, Mugar abated the substandard conditions on the property, and the matter was dismissed. Mugar appealed the trial court's order declaring the City as the prevailing party, and awarding it attorney fees pursuant to Health & Safety Code section 17980.7(c)(11). Mugar contended: (1) his due process rights were violated because the City was represented by a private law firm with an inappropriate financial interest in the litigation, and without adequate supervision by neutral government attorneys; (2) the award of attorney fees unconstitutionally burdened his First Amendment right to petition by penalizing him for asserting defenses in the action; and (3) the City should not be considered the prevailing party. The City argued Mugar forfeited his constitutional arguments, and it contested the merits of Mugar’s claims. After review, the Court of Appeal disagreed with the City that Mugar forfeited his constitutional arguments. On the merits, however, the Court rejected each of Mugar’s contentions and affirmed the judgment.

Filosa v. Alagappan

Court: California Courts of Appeal

Docket: A156412(First Appellate District)

Opinion Date: January 8, 2021

Judge: Tucher

Areas of Law: Civil Procedure, Medical Malpractice

Filosa began complaining of headaches in 2004-2005. By 2010, the headaches were constant with acute episodes. In 2010, his doctor ordered an MRI. Dr. Alagappan, a radiologist, interpreted the results and did not detect any abnormalities. Filosa’s headaches worsened. He began taking antidepressants. Filosa’s symptoms affected his performance at work. He took medical leaves of absence in 2011 and 2012. He described vision problems, eye strain, extreme fatigue, and an inability to concentrate. Filosa’s employer demoted him for performance problems. Filosa asked a doctor whether he might have a brain tumor. His doctor dismissed the suggestion, saying nothing in Filosa’s blood work indicated he had cancer and that he had already had a negative MRI. In 2014, his headaches were sometimes incapacitating. He again raised the possibility of a tumor. He was referred to a neurologist and underwent brain imaging. He was told in December 2014 that the test showed a cyst or a tumor in his brain. A re-review of the 2010 MRI imaging showed a “relatively subtle” mass, which had increased. Filosa underwent surgery, which caused adverse physical effects. Filosa sued for medical negligence in 2016 based on the failure to diagnose the brain mass after his 2010 MRI. The trial court granted the defendants summary judgment, citing the statute of limitations. The court of appeal reversed. There is a triable issue of fact as to the date of Filosa’s injury and his discovery of the injury,

Saint Francis Memorial Hospital v. State Department of Public Health

Court: California Courts of Appeal

Docket: A150545A(First Appellate District)

Opinion Date: January 13, 2021

Judge: Humes

Areas of Law: Civil Procedure, Government & Administrative Law

Saint Francis Memorial Hospital sought a writ of administrative mandate after being fined $50,000 by the California Department of Public Health. The trial court dismissed, based on the statute of limitations. The court appeal affirmed in 2018, finding that the petition was not timely and that Saint Francis was not entitled to the benefit of either equitable tolling or equitable estoppel. The state Supreme Court held that the 30-day limitations period under Government Code section 11523 for filing a petition for a writ of administrative mandate may be equitably tolled and that the first two elements of equitable tolling, timely notice and lack of prejudice, were satisfied, and remanded the question of whether Saint Francis satisfied the third element of reasonable and good faith conduct. The Department conceded that Saint Francis acted in good faith. The court of appeal again affirmed the dismissal. Saint Francis’s actions were not objectively reasonable. It is not objectively reasonable for an attorney to miss a deadline to file a petition due to a failure to appreciate easily ascertainable legal principles concerning whether reconsideration was an available remedy.

Schaden v. DIA Brewing Co., LLC

Court: Colorado Supreme Court

Citation: 2021 CO 4

Opinion Date: January 11, 2021

Judge: Gabriel

Areas of Law: Business Law, Civil Procedure

Plaintiff DIA Brewing Co., LLC contended that after the district court entered an order dismissing this action pursuant to C.R.C.P.12(b)(1), C.R.C.P. 15(a) gave DIA Brewing the right to amend its complaint as a matter of course and without leave of the court or the consent of defendants because no responsive pleading had been filed. Defendants MCE-DIA, LLC and Richard Schaden (collectively, “MCE-DIA”), in contrast, contended that the C.R.C.P. 12(b)(1) dismissal resulted in a final judgment that cut off DIA Brewing’s right to amend as a matter of course under C.R.C.P. 15(a). Thus: if DIA Brewing wanted to amend, it was required to seek leave of the court or to obtain MCE-DIA’s written consent. The Colorado Supreme Court granted certiorari to resolve this dispute, and concluded a final judgment cuts off a plaintiff’s right to file an amended complaint as a matter of course under C.R.C.P. 15(a), and the dismissal order here was a final judgment. Therefore, DIA Brewing did not have the right to amend its complaint as a matter of course, but obligated to request the trial court for leave to amend, or indicate MCE-DIA had consented in writing to the filing of an amended complaint. In this case, the Supreme Court determined the amended pleading was not futile, stating viable claims for relief. The Court thus affirmed the appellate court, though on different grounds, and remanded this case with directions that this case be returned to the district court to accept DIA Brewing’s amended complaint for filing, after which MCE-DIA could respond in the ordinary course.

Chaverri et al. v. Dole Food Company, et al.

Court: Delaware Supreme Court

Docket: 519, 2019

Opinion Date: January 12, 2021

Judge: Vaughn

Areas of Law: Civil Procedure, Labor & Employment Law, Personal Injury, Products Liability

Plaintiffs-Appellants worked on banana plantations in Costa Rica, Ecuador, and Panama. They sued the plantations in Delaware in 2012, claiming that while working on the plantations they suffered personal injuries from a pesticide known as 1, 2, Dibromo 3, Chloropropane (“DBCP”). Defendants-Appellees were numerous companies alleged to have caused the Plaintiffs’ exposure to DBCP and their resulting injuries. In 2013 the Superior Court dismissed the Plaintiffs’ complaint under what was sometimes referred to as Delaware’s McWane doctrine (the “Dismissal Order”). On December 31, 2018 Plaintiffs moved to vacate the Dismissal Order under Superior Court Civil Rule 60(b)(6). The Superior Court denied the Plaintiffs’ motion, finding that the motion was untimely and Plaintiffs failed to show extraordinary circumstances for vacating the judgment. Plaintiffs have appealed that order to the Delaware Supreme Court. Finding no reversible error, however, the Supreme Court affirmed the district court.

Wells Fargo Bank v. Bump

Court: Maine Supreme Judicial Court

Citation: 2021 ME 2

Opinion Date: January 12, 2021

Judge: Joseph Jabar

Areas of Law: Civil Procedure, Real Estate & Property Law

The Supreme Judicial Court affirmed the judgment of the district court in favor of John Bump on Wells Fargo Bank's foreclosure complaint, holding that the court did not err by concluding that a 2015 order dismissing without prejudice Wells Fargo's earlier action seeking foreclosure on the same mortgage did not vacate the final judgment in Bump's favor that had been entered in 2013 in that same case. Wells Fargo filed a foreclosure action in the district court in 2009. After a bench trial in 2013, the court entered judgment on the merits in favor of Bump. In 2015, the court granted Wells Fargo's motion to dismiss the 2009 action without prejudice. In 2016, Wells Fargo filed a new action to foreclose on the same mortgage. In 2020, the court entered judgment in favor of Bump, stating that it took notice of the 2013 final judgment and concluding that the 2015 order of dismissal without prejudice did not operate to vacate that judgment. The court then determined that Wells Fargo's entire claim was barred by res judicial given the 2013 judgment. The Supreme Judicial Court affirmed, holding that the district court (1) properly concluded that the preclusive effect of the 2013 judgment barred the present action; and (2) did not abuse its discretion in taking judicial notice of the prior judgment.

In the Matter of the Estate of Costas E. Pavlou

Court: Supreme Court of Mississippi

Citation: 2020-CA-00010-SCT

Opinion Date: January 14, 2021

Judge: James W. Kitchens

Areas of Law: Civil Procedure, Trusts & Estates

Kenneth Rogers appealed a chancery court order granting authority to the executor of the Estate of Costas E. Pavlou (the estate) to disburse funds to the estate’s attorneys. The chancellor found that Rogers lacked standing to challenge the disbursement because he had not probated a claim against the estate. After review, the Mississippi Supreme Court found it had jurisdiction over the appeal, but Rogers did not designate the documents on which he based his appellate challenge to the chancellor's decision. Because the Supreme Court was unable to review Rogers' arguments due to his not having designated relevant portions of the record, the chancery court order was affirmed.

Brendel Construction v. WSI

Court: North Dakota Supreme Court

Citation: 2021 ND 3

Opinion Date: January 12, 2021

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Brendel Construction appealed a district court judgment affirming an administrative law judge’s (ALJ) decision to hold Brendel Construction liable for unpaid workers compensation premiums and penalties attributed to a subcontractor’s account, and determining Randy Brendel was personally liable for unpaid workers compensation premiums. North Dakota Workforce Safety and Insurance (WSI) cross-appealed the district court’s order dismissing WSI’s cross-appeal from the decision of the ALJ as untimely filed. WSI identified Brendel Construction as the general contractor for a roofing project in Bismarck where crew members were reported to be working without fall protection. WSI’s investigation of the report regarding the lack of fall protection expanded into an investigation of workers compensation coverage. WSI ultimately concluded that two of Brendel Construction’s subcontractors, Alfredo Frias and Daniel Alvidrez, were uninsured and not providing North Dakota workers compensation coverage for their employees. WSI requested, but did not receive, information from Brendel Construction regarding the subcontractors’ income. After review, the North Dakota Supreme Court affirmed the imposition of liability against Brendel Construction for unpaid workers compensation premiums and penalties, and affirmed the imposition of liability against Randy Brendel. The Court reversed and remanded the dismissal of WSI’s cross-appeal as untimely filed.

Melaas v. Diamond Resorts U.S. Collection Development

Court: North Dakota Supreme Court

Citation: 2021 ND 1

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts

Kathleen Melaas appealed a district court order granting a motion to compel arbitration and dismissing her complaint against Diamond Resorts U.S. Collection Development, LLC. She alleged Diamond Resorts offered vacation and timeshare packages, she attended a sales meeting with a Diamond Resorts representative, the sales meeting lasted approximately five hours, and she asked to leave the meeting on at least one occasion and Diamond Resorts refused to allow her to leave. She claimed Diamond Resorts knew she was a diabetic and experienced fatigue and confusion, Diamond Resorts knew she was a vulnerable adult subject to a durable power of attorney for financial management, and Diamond Resorts would not allow her to leave the sales meeting until she signed the timeshare agreement. Melaas asserted she lacked the capacity to enter into the agreement, Diamond Resorts used high-pressure and abusive sales tactics and knowledge of her medical condition to unduly influence and coerce her into signing the agreement, and any consent was obtained by duress and menace. After a hearing, the district court granted Diamond Resorts’ motion to compel arbitration and dismissed Melaas’ complaint. The North Dakota Supreme Court found that the forum selection clause in section 17 of the contract was not part of the arbitration agreement. The forum selection clause stated, “This Agreement is governed by Nevada law without regard to Nevada’s choice of law rules. You must bring any legal action in Clark County, Nevada.” When the term “Agreement” was used in the contract, the Court found it referred to the entire contract and not the arbitration agreement. To the extent Diamond Resorts argued the action should have been brought in Nevada, it was a venue issue and not a jurisdictional issue, and the right could be waived. The issue of improper venue was waived if it was omitted from a motion to dismiss or if it was not made by motion or included in the responsive pleading. On remand, if any of the parties argue the case must be dismissed under the forum selection clause, the district court must first determine whether a contract exists. If the court determines a contract exists, it could then consider the forum selection clause issue, including whether the issue was waived. The order compelling arbitration and dismissing Melaas' complaint was reversed, and the matter remanded for further proceedings.

Neppel, et al. v. Development Homes, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 5

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Non-Profit Corporations, Personal Injury

Pamela Neppel, individually and as the parent and legal guardian of Z.N., an incapacitated individual, appealed amended judgment entered after a jury trial. She also appealed denying leave to amend her complaint, an order for an amended judgment, and an order denying her motion for attorney fees and costs. Development Homes, Inc. (DHI) cross appealed an order denying its motion for judgment as a matter of law. Z.N., at the time of the incident giving rise to this case, was living at a residential care facility operated by DHI. Neppel was Z.N.’s mother. Neppel filed this lawsuit alleging Z.N. was raped by another resident, referred to as S.O., who lived on the same floor of the facility as Z.N.’s housemate. Neppel alleged DHI had knowledge S.O. was a sexual predator and Z.N. was susceptible to abuse, yet DHI withheld information from her about the risk of placing the two together. Neppel also alleged DHI did not immediately report the rape or provide prompt and adequate medical care for Z.N. Along with DHI, Neppel sued various DHI employees, as well as S.O.’s co-guardians. The case was tried to a jury on counts of negligence and intentional infliction of emotional distress. The jury returned a verdict awarding Neppel and Z.N. $550,000 in damages. The jury specifically awarded Z.N. $100,000 for damages caused by DHI’s negligence. The jury also awarded Z.N. and Neppel $400,000 and $50,000 in damages, respectively, for past and future severe emotional distress caused by DHI. The jury did not find any of the individually-named defendants liable. DHI filed a motion to amend the judgment asserting it was entitled to charitable immunity under N.D.C.C. ch. 32-03.3, which set liability limits for certain charitable organizations. The court granted the motion and entered an amended judgment that applied the $250,000 charitable organization liability limit. After review, the North Dakota Supreme Court affirmed the order denying Neppel leave to amend her complaint and the order denying her motion for attorney fees and costs. The Supreme Court reversed the order denying DHI’s motion for judgment as a matter of law, finding Neppel’s appeal from the order for amended judgment was moot.

Potts v. City of Devils Lake, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 2

Opinion Date: January 12, 2021

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Labor & Employment Law

Brandon Potts appealed after a district court granted summary judgment to the City of Devils Lake and the Devils Lake Police Department (collectively, “Devils Lake”), which dismissed his claim for wrongful termination. Potts argued the court erred in holding under North Dakota law that no exception to the employment-at-will doctrine existed for law enforcement officers who act in self-defense. The North Dakota Supreme Court concluded the district court did not err in holding under North Dakota law no public policy exception to the at-will employment doctrine exists for law enforcement officers who act in self-defense. Therefore, the court did not err in granting summary judgment to Devils Lake.

Young v. Burleigh Morton Detention Center, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 8

Opinion Date: January 12, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Government Contracts

Laron Young appealed summary judgment entered in favor of Burleigh Morton Detention Center (“BMDC”). Young was an inmate at BMDC. Reliance Telephone of Grand Forks, Inc. (“Reliance”) contracted with BMDC to operate its inmate telephone system. Every call that was not listed as “private” within the Reliance system was automatically recorded. It was undisputed that the telephone number for Young’s attorney was not on the list of private numbers and various calls between himself and his attorney were recorded. Young sued BMDC and Reliance arguing his Sixth Amendment right to counsel was violated and that BMDC had not complied with N.D.C.C. 12- 44.1-14(1), which required correctional facilities to ensure inmates have confidential access to their attorneys. The district court dismissed the claims against Reliance for lack of jurisdiction, and granted summary judgment in favor of BMDC, concluding Young had not alleged facts to support a finding that he was prejudiced by the recordings and therefore his right to counsel was not violated. The court also concluded Young had not alleged facts to support a finding that BMDC violated N.D.C.C. 12-44.1-14(1). The North Dakota Supreme Court affirmed, that to the extent relief might be available for Young’s claim, he did not allege facts to support a finding that BMDC knowingly intruded into the communications he had with his attorney or that prejudice or a substantial threat of prejudice existed. Therefore, the district court did not err when it granted BMDC summary judgment on Young’s Sixth Amendment claim. With respect to Young's statutory claim, the Court found the plain language of the statute did not require correctional facilities to affirmatively identify an inmate's attorney's telephone number as Young argued. Rather, by its own language, N.D.C.C. 12-44.1-14 was “subject to reasonable . . . correctional facility administration requirements.” The Court thus concluded BMDC’s policy allowing inmates or their attorneys to register attorney telephone numbers as confidential numbers not to be monitored did not constitute a violation of N.D.C.C. 12- 44.1-14(1).