Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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Thompson v. JPMorgan Chase Bank, N.A.

Court: US Court of Appeals for the First Circuit

Docket: 18-1559

Opinion Date: December 9, 2020

Judge: Boudin

Areas of Law: Banking, Real Estate & Property Law

The First Circuit affirmed the judgment of the district court granting JPMorgan Chase Bank's (Chase) motion to dismiss Mark and Beth Thompson's action for breach of contract and for violating the statutory power of sale Massachusetts affords mortgagees, holding that the foreclosure sale was not void. The Thompsons alleged that Chase failed to comply with the notice requirements in their mortgage before foreclosing on their property. The mortgage terms for which Massachusetts courts demand strict compliance include the provisions in paragraph 22 of the mortgage requiring and prescribing the pre-foreclosure default notice. The Thompsons argued that because paragraph 19 of the mortgage included conditions and time limitations on the Thompsons' post-acceleration reinstatement right, Chase failed to strictly comply with paragraph 22's notice requirement by failing to inform the Thompsons of those conditions and limitations. The district court dismissed the case for failure to state a claim. The First Circuit held that the paragraph 22 notice the Thompsons received was potentially deceptive and, therefore, the foreclosure sale was void. The Court then withdrew its decision and certified a question to the Massachusetts Supreme Judicial Court (SJC). Because the SJC held that the paragraph 22 notice could not have been misleading for omitting paragraph 19's deadline, the First Circuit affirmed the judgment of the district court.

Toomey v. Riverside RV Resort, LLC

Court: Supreme Court of Alabama

Docket: 1180521

Opinion Date: December 4, 2020

Judge: Mitchell

Areas of Law: Real Estate & Property Law

Larry Toomey blocked a culvert that had been installed to channel water away from the only road providing access to his property and to the property of his neighbor, Riverside RV Resort, LLC ("Riverside"). Toomey did this with the knowledge that the blockage might damage the road and Riverside's property. Riverside sued and obtained an injunction against Toomey, as well as a judgment awarding it compensatory damages, punitive damages, and attorney fees. Toomey appealed. After review, the Alabama Supreme Court affirmed judgment to the extent it enjoined Toomey from blocking the culvert and granted Riverside compensatory and punitive damages, but reversed to the extent it awarded attorney fees to Riverside.

City of Little Rock v. Ward

Court: Arkansas Supreme Court

Citation: 2020 Ark. 399

Opinion Date: December 3, 2020

Judge: Rhonda K. Wood

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law

The Supreme Court reversed the judgment of the circuit court affirming the Pulaski County Assessor's denial of the Little Rock Municipal Airport Commission's tax exemption for three land parcels, holding that because the Airport used the unleased properties exclusively for public purposes, they were exempt from taxation. After the Assessor denied the Airport's application for tax exemptions the Airport filed four amended complaints. The circuit court granted the Assessor's motion for summary judgment, concluding that the properties were not exempt from taxation. The Supreme Court reversed, holding (1) the Airport directly used the subject properties exclusively for public purposes when the properties were unleased; and (2) therefore, the properties exempt from taxation during the periods were they were unleased.

Phelan Piñon Hills Community Services District v. California Water Service Co.

Court: California Courts of Appeal

Docket: F082094(Fifth Appellate District)

Opinion Date: December 9, 2020

Judge: Rosendo Peña, Jr.

Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law

The Antelope Valley Groundwater Cases (AVGC) proceeding litigated whether the water supply from natural and imported sources, which replenishes an alluvial basin from which numerous parties pumped water, was inadequate to meet the competing annual demands of those water producers, thereby creating an "overdraft" condition. Phelan ultimately became involved in the litigation as one of the thousands of entities and people who asserted they were entitled to draw water from the aquifer. The trial court subsequently defined the boundaries for the AVAA to determine which parties would be necessary parties to any global adjudication of water rights, and then determined that the aquifer encompassed within the AVAA boundaries (the AVAA basin) had sufficient hydrologic interconnectivity and conductivity to be defined as a single aquifer for purposes of adjudicating the competing groundwater rights claims. Settlement discussions ultimately produced an agreement among the vast majority of parties in which they settled their respective groundwater rights claims and agreed to support the contours of a proposed plan (the Physical Solution) designed to bring the AVAA basin into hydrological balance. Phelan, which provides water to its customers who are located outside the AVAA boundaries, became subject to the AVGC litigation because a significant source of its water is pumping from a well located in the AVAA basin. The Court of Appeal held that substantial evidence supports the judgment as to Phelan and Phelan was not deprived of its due process rights to present its claims. In this case, substantial evidence supports the conclusion that Physical Solution will bring the AVAA basin into balance; the trial court correctly rejected Phelan's fourth cause of action asserting it had acquired water rights as a "public use appropriator;" the phased decisional procedure did not deprive Phelan of due process; and the trial court correctly concluded that Phelan had no priority claim to return flows from native safe yield.

Craig Tracts Homeowners' Ass'n v. Brown Drake, LLC

Court: Montana Supreme Court

Citation: 2020 MT 305

Opinion Date: December 8, 2020

Judge: Mike McGrath

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the ruling of the district court determining that Brown Drake, LLC's operation of the Brown Drake Lodge did not violate the Craig Tracts Homeowners' Association's (HOA) amended covenant's requirement that the property be "used for residential purposes only," holding that the district court did not err. The HOA brought this action for injunctive and declaratory relief, alleging that Brown Drake's operation of the Lodge violated the amended covenants' requirement that property be used for residential purposes only. The district court ruled in favor of Brown Drake. The Supreme Court affirmed, holding that Brown Drake's operation of the Lodge did not violate the amendment covenants under the HOA.

State ex rel. Delta Lookout, LLC v. City of Cincinnati

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5486

Opinion Date: December 3, 2020

Judge: Per Curiam

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the judgment of the court of appeals denying Appellant's request for a writ of mandamus ordering the City of Cincinnati to repair and maintain two streets located within the City's boundaries, holding that the court of appeals' analysis eschewed a comprehensive mandamus discussion. Appellant sought a writ of mandamus to compel the City to repair and maintain the streets at issue, alleging that the City's neglect of the streets had resulted in unsafe conditions caused by inadequate water drainage. The court of appeals denied the writ, concluding that the streets had never become public through either a statutory or a common-law dedication. The Supreme Court reversed, holding (1) the Platting Commission Act furnishes a means of achieving a statutory dedication; (2) the two streets at issue were the subject of a statutory dedication as of 1876; and (3) because the parties did not adequately brief the clear-legal-right and clear-legal-duty requirements of the mandamus standard, the cause is remanded for full application of the mandamus standard.

State ex rel. Omni Energy Group, LLC v. Ohio Department of Natural Resources, Division of Oil & Gas Resources Management

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5581

Opinion Date: December 9, 2020

Judge: Per Curiam

Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law

The Supreme Court granted a writ of mandamus sought by Omni Energy Group, LLC as to the Ohio Department of Natural Resources, Division of Oil and Gas Resources Management chief Eric Vendel ordering him to rule upon the validity of objections that were submitted concerning Omni's two saltwater injection well permit applications, holding that Omni was entitled to the writ. When the division chief did not render a decision on Omni's applications Omni filed a complaint against the division, Vendel, and department director Mary Mertz, sought a writ of mandamus compelling them to either issue or deny the permits. The Supreme Court granted a writ of mandamus, but instead of ordering Vendel immediately to render a decision on the applications, the Court ordered him to rule upon the validity of objections as required under Ohio Adm.Code 1501:9-3-06(H)(2)(c), holding (1) Omni had a clear legal right to, and Vendel had a clear legal duty to provide, a ruling on the validity of objections submitted against the applications; and (2) Omni did not suggest a basis for granting a writ of mandamus as to the division or to Mertz.

Jones v. Phillips

Court: Supreme Court of Virginia

Docket: 190643

Opinion Date: December 3, 2020

Judge: Kelsey

Areas of Law: Insurance Law, Real Estate & Property Law

The Supreme Court held that an insurer's payments on a fire insurance policy were not immune from garnishment as "proceeds of the sale or disposition" of property held in trust under former Va. Code 55.20.2(C) and that the contractual right under the insurance policy to receive fire loss payments was not intangible personal property held by the named insured and his wife as a tenancy by the entirety. Terry and Cathy Phillips owned their residence as tenants by the entirety until they retitled the property in the names of separate, revocable trusts as tenants in common. The residence was later damaged by fire. The residence was covered by an insurance policy issued by Chubb & Son, Inc. that named Terry Phillips as the policyholder. Andrea Jones sought satisfaction of a civil judgment she had obtained against Terry by filing this action to garnish insurance payments from Chubb arising out of the fire damage owned by the reciprocal trusts. The Phillipses sought to quash the garnishment, arguing that the insurance payments were immune from garnishment under section 55.1-136(C). The circuit court granted the motion. The Supreme Court reversed, holding that the circuit court erred in holding that section 55.1-136(C) immunized the insurance payments from garnishment.

Corrigan v. Vig

Court: Wyoming Supreme Court

Citation: 2020 WY 148

Opinion Date: December 9, 2020

Judge: Kautz

Areas of Law: Real Estate & Property Law

The Supreme Court summarily affirmed the judgments of the district court in favor of Plaintiff on his two complaints seeking to be declared the sole owner of certain real properties and to invalidate certain documents in the properties' chains of title, holding that Defendant's pro se briefs failed to comply with the Wyoming Rules of Appellate Procedure. In each case, Plaintiff filed a motion for summary judgment, and Defendant did not respond to the motions. The district court granted Plaintiff's motions and entered judgments declaring him to be the sole owner of the properties and invalidating the documents at issue. Defendant appealed, raising seven issues in his pro se briefs. The Supreme Court summarily affirmed the district court's judgments, holding that Defendant's pro se briefs did not provide any cogent argument and otherwise failed to comply with the rules of appellate procedure.