Latest 2 Cases: Freed v. Thomas (Civil Procedure), United States v. French (Criminal Law)

No, Republicans Cannot Throw the Presidential Election into the House so that Trump Wins

NEIL H. BUCHANAN, MICHAEL C. DORF, LAURENCE TRIBE

UF Levin College of Law professor and economist Neil H. Buchanan, Cornell Law professor Michael C. Dorf, and Harvard Law professor emeritus Laurence H. Tribe explain why President Trump’s plan to win the election through a forced decision by the U.S. House of Representatives relies on an incorrect reading of the plain text of the Twelfth Amendment of the Constitution. The authors argue, even in a best-case scenario for Trump, in which the electoral votes of Pennsylvania are thrown out, Biden would still win with a majority of the resulting electoral votes and the House would simply not have the legal authority to vote on an election that had already been decided.

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Is Anyone Surprised That Our Norm-Busting President Ignored the Debate Rules?

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on last night’s presidential debate between President Trump and former Vice President Biden. Dorf observes that Trump’s repeated violations of the agreed-upon rules of the debate; his outrageous substantive comments refusing to condemn white supremacy (and instead naming a specific white supremacist group) and declining to say he would accept the outcome of the election; and his callous response to Biden’s mention of Biden’s deceased son Beau should alert any yet unaware Americans to the fact that Trump has no sense of decency.

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Freed v. Thomas

Docket: 18-2312

Opinion Date: September 30, 2020

Judge: Siler

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Tax Law

Freed owed $735.43 in taxes ($1,109.06 with penalties) on his property valued at about $97,000. Freed claims he did not know about the debt because he cannot read well. Gratiot County’s treasurer filed an in-rem action under Michigan's General Property Tax Act (GPTA), In a court-ordered foreclosure, the treasurer sold the property to a third party for $42,000. Freed lost his home and all its equity. Freed sued, 42 U.S.C. 1983, citing the Takings Clause and the Eighth Amendment. The district court first held that Michigan’s inverse condemnation process did not provide “reasonable, certain, and adequate” remedies and declined to dismiss the suit under the Tax Injunction Act, which tells district courts not to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had" in state court, 28 U.S.C. 1341. The court reasoned that the TIA did not apply to claims seeking to enjoin defendants from keeping the surplus equity and that Freed was not challenging his tax liability nor trying to stop the state from collecting. The TIA applied to claims seeking to enjoin enforcement of the GPTA and declare it unconstitutional but no adequate state court remedy existed. The court used the same reasoning to reject arguments that comity principles compelled dismissal. After discovery, the district court sua sponte dismissed Freed’s case for lack of subject matter jurisdiction, despite recognizing that it was “doubtful” Freed could win in state court. The Supreme Court subsequently overturned the "exhaustion of state remedies" requirement for takings claims. The Sixth Circuit reversed without addressing the merits of Freed’s claims. Neither the TIA nor comity principles forestall Freed’s suit from proceeding in federal court.

United States v. French

Docket: 20-5104

Opinion Date: September 30, 2020

Judge: John M. Rogers

Areas of Law: Criminal Law

French, with two others, confronted the victim at gunpoint as she was driving, demanded that she exit her car and after she complied, drove away in her vehicle. Weeks later, the three men committed a second carjacking, against an elderly man who lived in a retirement community. The victims and his co-defendants testified at French’s trial. French did not present any evidence. French was convicted of carjacking, 18 U.S.C. 2119, and possession of a firearm in furtherance of a crime of violence, 18 U.S.C. 924(c). The PSR recommended a sentence of 240 months’ imprisonment. The court imposed a sentence of 246 months: 78 months’ imprisonment on each carjacking count, to be served concurrently, and 84 months’ imprisonment on each section 924(c) count, to be served consecutively. The Sixth Circuit affirmed, rejecting a challenge to the sufficiency of the evidence. French’s challenge to the credibility of witnesses is not a valid basis for overturning his conviction. The court also rejected French’s contention that he cannot be legally convicted of both offenses under the Double Jeopardy Clause. The district court properly applied the sentencing enhancement in U.S.S.G. 3C1.1 for obstruction of justice on the basis of French’s attempt to intimidate a witness by posting a Facebook message about his co-defendant's testimony.