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On the Docket’s Preview of the January Supreme Court Arguments

After a, hopefully, relaxing break for the Justices, the Supreme Court will start up the second half of the 2017 Term with a docket packed full of interesting cases. There is no rest for the weary in this Term!

The Court starts out by holding oral arguments in pairs. The Court hears two cases on Monday dealing with water rights between states. In the first case, the Court looks at an agreement between Texas, New Mexico, and Colorado to see whether New Mexico has been abdicating its responsibilities under the agreement and diverting water away from Texas. In the second case, the Court looks at whether Georgia is over-consuming water reserved for Florida. On a larger scale, it is interesting to see two water rights cases before the Court, especially amid 2017’s year in weather both in the western and eastern parts of the country.

Last month, the Court heard what will be a landmark Fourth Amendment decision in Carpenter v. United States. This month, the Court will hear a separate pair of Fourth Amendment cases asking the Justices to clarify the scope of the privacy interests that individuals may assert over their vehicles. In the first case, the Court will examine whether a defendant who is not listed on a rental agreement, but who is driving the car, has a reasonable expectation of privacy. Interestingly, one of the defendant’s policy arguments is that many people ignore the rental agreements and allow unlisted people to drive. Whether the Court will accept people ignoring legally binding rental agreements as a good argument is questionable. The potential better argument is whether this would incentivize officers to pull over rental cars more frequently than other cars to check whether the person driving is listed on the agreement. If they are not, and they have no reasonable expectation of privacy, then officers would have the go ahead to perform searches. We will have to wait and see whether the Court thinks that this incentive is enough to hold that unlisted drivers have a reasonable expectation of privacy.

In the second Fourth Amendment case, the Court will examine the combination of privacy afforded to the curtilage surrounding a house and the lesser privacy afforded to vehicles. Here, the defendant parked and covered a motorcycle in a driveway. When the officer arrived at the house, he lifted up the cover and discovered that the motorcycle was stolen. Should the motorcycle be considered part of the curtilage of the house and subject to the warrant requirement? Or should it be considered a vehicle and only subject to probable cause? The case will re-examine Coolidge v. New Hampshire—a plurality decision—which is rarely used as precedent unless the facts are substantially similar. This may be the case for the Court to overturn or reaffirm Coolidge.

The Court will turn to voter rights in the long-awaited arguments in Husted v. A. Phillip Randolph Institute. As you may remember from previous previews, GW Law held a panel where legal scholars discussed the merits and implications of HustedHusted is much-anticipated because of its potential impact on how states purge voter rolls. Petitioners challenge that Ohio’s process for purging voter rolls violates the National Voter Registration Act of 1993 by using nonvoting as the trigger. As NAACP Legal Defense Fund counsel Sherrilyn Ifill noted in GW Law’s Supreme Court panel, using nonvoting to trigger removal from a voter list takes away a citizen’s right to “vote with their feet,” i.e., to not vote because perhaps they don’t agree with either candidate or the process at large. Ms. Ifill also noted the large proportion of registered voters who were first-time voters in the Obama and Trump presidential elections. If Ohio’s purge process was the appropriate way to purge the rolls, many of those voters would not have been able to cast ballots, a clearly unacceptable result.

In the second week of arguments, the Court will look at the fascinating case of Dalmazzi v. United States. In that case, Dalmazzi was found guilty and appealed the decision. On the appellate panel, one of the judges had taken his oath of office, but his commission was not signed. The Court will look at whether his being on the panel violated a U.S. Code provision preventing an officer on active duty from holding and exercising the functions of a civil office requiring appointment by the President and advice and consent of the Senate.

The Court will hear the familiar case of Encino Motorcars v. Navarro. You may remember that the Court vacated and remanded the first iteration of Encino in 2016. The question presented to the Court remains the same: whether service advisors are exempt, under the Fair Labor Standards Act, from overtime pay. In the preview, we’ve linked to Dean Morrison’s response to the first Encino decision. The Court will have to decide whether the Department of Labor’s interpretive rule should be afforded Chevron deference. In recent years, the Court has begun its shift away from applying Chevron deference. It will be interesting to see what a new Court—without Justice Scalia—will have to say about deference to interpretive rules.

These and other cases being argued this month are detailed below. On the Docket has researched the parties’ court filings, summarizing the factual and procedural history of each so that readers may acquaint themselves with the cases before they are argued. As always, don’t forget to check back when opinions are handed down for in-depth analysis of decisions.

January 8


Texas v. New Mexico and Colorado
No. 22o141

In the first of two water disputes the Court will hear on January 8, Texas alleges that New Mexico violated the Rio Grande Compact and the Rio Grande Project Act by excessively diverting water apportioned to Texas and its residents. In effect, Texas alleges that New Mexico has been taking water from the Rio Grande that should be going to Texas. The Court appointed a Special Master to hear the arguments, and the present dispute originated with the Special Master’s interim report, denying New Mexico’s motion to dismiss. The Supreme Court has original jurisdiction to hear the exceptions to the Special Master’s Report.

The Rio Grande Compact is a 1938 agreement between Texas, New Mexico, and Colorado that governs the equitable apportionment of Rio Grande water among the three states. Congress approved the agreement in 1939. The specific violation, alleged by Texas, is that New Mexico has both increased its water usage and authorized groundwater pumping near the Elephant Butte Reservoir—permitting over three thousand wells pumping tens of thousands of acre-feet of water—depriving Texas of water apportioned to it in the Compact. Texas interprets the Compact as requiring each of the signatories to deliver a set minimum amount of water to the Elephant Butte reservoir and then to allow that water to traverse New Mexico unobstructed so that Texas may benefit. But New Mexico’s obstructions, Texas claims, adversely impact the delivery of water intended for Texas and its residents.

New Mexico counters by claiming that Texas’s interpretation of the Rio Grande Compact is incorrect. Under the Compact, New Mexico argues, it is neither required to deliver a set minimum amount of water to the Reservoir nor must the state allow that water to run unimpeded to Texas. Rather, New Mexico claims that the 1938 Compact only obliges it to deliver an unspecified amount of water to the Reservoir. Thus, although it admits to diverting water through various mechanisms, New Mexico asserts it is not in violation of the Rio Grande Compact.

In an unusual move, the United States has also gotten involved as an intervening party, claiming New Mexico has additionally impeded its ability to deliver water to downstream users like Mexico. But seeing as the United States was not a signatory to the Rio Grande Compact, the Special Master perceives the intervention as an overstepping of federal power. There will likely be discussion during oral argument regarding the United States’ role in the dispute.

If the Court sides with Texas, New Mexico fears its economy might decline, as various profitable industries will have to stop pumping groundwater. Alternatively, if the Court sides with New Mexico, then Texas will have to formulate an alternative plan for many of its residents’ and company’s water supplies.

Florida v. Georgia
No. 22o142

The other water dispute the Supreme Court will hear on January 8 involves the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”). The ACF Basin distributes water to Georgia, Alabama, and Florida, and the dispute before the Court primarily concerns Georgia’s alleged overconsumption of water apportioned to Florida. The US Army Corps of Engineers operates a system of dams in the basin and, as such, is also involved in the dispute. The question before the Court is whether Florida is entitled to equitable apportionment of the ACF Basin waters and injunctive relief against Georgia to sustain an adequate flow of fresh water into its Apalachicola region.

The Chattahoochee River starts in North Georgia and flows south along Georgia’s border through Alabama and Florida. The Chattahoochee River joins the Flint River to form the Apalachicola River, which flows south through Northwest Florida and into the Apalachicola Bay in the Gulf of Mexico. The ACF Basin distributes 19,800 square miles of water into the three states: 74% into Georgia, 15% into Alabama, and 11% into Florida.

Florida specifically alleges that its Apalachicola region is suffering environmentally and economically—in particular, its oyster industry is harmed—due to Georgia’s overconsumption of water from the ACF Basin. But the issues caused by the ACF Basin’s water distribution is hardly a recent phenomenon. The states involved have complained about the water apportionment from this basin for decades. Back in the 1980s, issues arose from a series of droughts in the area limiting the water supply. Several years later, in 1997, the three states and the federal government seemingly entered into an agreement to develop an allocation formula for the ACF Basin in order to ensure equitable apportionment. But this supposed agreement did not lead to an allocation formula and eventually expired without any conclusion.

As a result of their inability to determine any formal equitable apportionment, an on-again off-again battle over the waters has ensued. In particular, a drought coupled with the collapse of Florida’s oyster industry drove Florida to file a complaint in 2013, leading to the present dispute. This is the first time the Court will weigh in on the legal fight over the ACF Basin. As is custom in these disputes, a Special Master was assigned and his report rejected Florida’s argument that Georgia’s water consumption from the ACF Basin should be limited. The report concluded that Florida had not proven by clear and convincing evidence that capping Georgia’s water consumption would improve the river flows during a drought period and thus aid the Apalachicola region’s economy and environment.

At stake for Florida are its industries that rely on this water supply as well as its environment and ecosystems, as Georgia’s water usage has allegedly dangerously altered the salinity of the water. Georgia counters that putting limits on its water usage from the ACF Basin would actually cost its own economy billions of dollars.

January 9


Byrd v. United States
No. 16-1371; 3d Cir.

Anyone who has ever rented a car for the weekend should know the process well: Stand in a long line, choose “Economy” or “Compact,” adjust the mirrors, scan for an acceptable radio station. And then, before driving off the lot, you sign the rental agreement, the magisterial document that, if you actually took the time to read the whole thing, would probably eat up most of your weekend getaway.

But let’s say, sometime later in the weekend, you feel too tired to drive and (responsibly!) turn the wheel over to your travel companion, who isn’t listed on the rental agreement as an authorized driver. What happens to the privacy protections covering the car?

That’s the question before the Court in Byrd. Petitioner Terrence Byrd borrowed a car that his fiancée had rented—the government contends that the two had arranged a strawman rental, since Byrd’s prior convictions would have prevented him from renting a car in his own name—and drove it from New Jersey toward Pittsburgh. Outside of Harrisburg, police stopped Byrd for a minor traffic violation. Byrd produced the rental agreement, acknowledging that he was not listed as an authorized driver. After learning that Byrd had an outstanding arrest warrant, police questioned Byrd about what he had in his car and sought his permission to search it. Although the parties dispute whether Byrd consented to a search, the officers believed that they did not need Byrd’s consent in any event because he was not listed as an authorized driver on the rental agreement. The officers’ search uncovered 43 bricks of heroin in the trunk.

Byrd entered a conditional guilty plea to charges of drug possession and possession with intent to distribute, while preserving his right to appeal the district court’s denial of his motion to suppress the products of the search. The Third Circuit affirmed the conviction, holding that the driver of a rental car who is not listed as an authorized driver on the rental agreement has no expectation of privacy in the car.

Byrd’s use of the rental car indisputably violated the Budget rental agreement, which contains an all-capitals warning that allowing an unauthorized driver to drive the car “MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID.” The issue before the Court is whether Byrd’s violation of the agreement also stops him from asserting privacy rights in the car.

Byrd argues that, notwithstanding the terms of the rental agreement, it was reasonable for him to expect privacy in the rental car because he borrowed it with his fiancée’s permission. By passing possession and control of the car to Byrd, he argues, she also passed to him a right to exclude others from the vehicle. He likens the case to Jones v. United States, 362 U.S. 257 (1960), in which the Court held that an overnight visitor had a reasonable expectation of privacy in his friend’s apartment while he was staying there. Byrd also notes several undesirable policy consequences that he says would flow from allowing private agreements to determine the existence of a reasonable expectation of privacy. Noting that renters frequently flout the terms of their rental agreements, he argues that depriving unauthorized drivers of privacy protections would conflict with people’s reasonable expectations and might even create a perverse incentive for police to pull over rental cars in the hope that the driver is not authorized and thus powerless to contest a search.

The government replies that Byrd could not have had a reasonable expectation of privacy in the car because his fiancée had no authority to allow him to drive the car under the rental agreement. Thus, Byrd certainly had no more rights than a passenger legitimately present in someone else’s car, who, as the Court held in Rakas v. Illinois, 439 U.S. 128 (1979), may not contest a search of the car’s trunk or glove compartment. Byrd’s asserted “possession and control” test, the government argues, would prove unworkable and would allow even car thieves to claim privacy protections in the cars they stole. For good measure, the government argues that Byrd cannot claim to have privacy rights in the car based on common-law property principles, because the terms of the rental agreement made Byrd’s fiancée’s proposed bailment of the car to Byrd ineffective.

Whichever party prevails, both sides claim quite plausibly that the impact will be significant. As Byrd noted, there were more than 115 million car rentals in the United States in 2015, making the question of privacy protections in those vehicles one of far-reaching importance.

Collins v. Virginia
No. 16-1027; Va.

In Collins, the Court confronts an apparent clash between the privacy protections applicable to the automobile and those applicable to the home. After a high-speed motorcycle chase, police officers in Albemarle County, Virginia identified Petitioner Ryan Collins as a suspect. Further investigation traced Collins and the motorcycle to a residence where Collins’s girlfriend lived and Collins stayed several nights each week. A police officer walked up the driveway of the residence to a partially enclosed parking patio, where he found a motorcycle under a protective cover. Lifting the cover, the officer recorded the motorcycle’s license plate number, which allowed him to confirm that the motorcycle was stolen. After unsuccessfully attempting to suppress the evidence from the officer’s search, Collins was convicted of knowingly receiving stolen property.

The facts of the contested search in Collins fall into an overlapping region between two Fourth Amendment doctrines. The Court has long held that police may search automobiles upon probable cause without first obtaining a warrant. The Court has justified the so-called “automobile exception” on two principal grounds: first, that automobiles are readily movable, rendering a warrant requirement impractical; and second, that individuals have a reduced expectation of privacy in automobiles, owing to the pervasive regulatory scheme governing their use on public roadways.

On the other hand, it is well settled that police must ordinarily obtain a warrant before searching an individual’s home. The protection of the home against warrantless searches extends past the four corners of the dwelling to the curtilage—those areas of the premises, like the porch and the garage, that are closely connected to the home. The Court recently confirmed the strength of the Fourth Amendment’s protection of the home in Florida v. Jardines, 569 U.S. 1 (2013), where it found that an officer had conducted an unreasonable search by bringing a drug-sniffing dog into the curtilage of the home. In an opinion grounded in common-law property principles, the Court held that, although homeowners may grant strangers an “implicit license” to enter their property and approach the door, intrusions by the government that exceed the scope of the license are searches requiring a warrant.

Affirming Collins’s conviction, the Supreme Court of Virginia held that the automobile exception is a categorical rule that applies even when a car is located on property that police could otherwise only search pursuant to a warrant. Since the officer had probable cause to search the motorcycle, the court concluded that the search was reasonable.

Put simply, the issue before the Court is which rule should trump the other: the warrant requirement applying to searches of private property or the exception to the warrant requirement applying to automobiles. Collins argues that the automobile exception should not apply to a vehicle parked on private property or curtilage. He relies heavily on Coolidge v. New Hampshire, 403 U.S. 443 (1971), in which the Court held unreasonable a search of a car parked in a private driveway. In that case, however, only a plurality of the Court concluded that the automobile exception should not apply to a car parked in a driveway; Justice Harlan, providing the fifth vote, declined to follow the plurality’s conclusion. Urging the Court to adopt the Coolidge plurality’s holding as binding precedent, Collins notes that the traditional rationales for the automobile exception do not apply to vehicles parked on private property. Cars parked on private property, for instance, are subject to fewer state regulations than those in use on public roads. Collins warns that the Virginia Supreme Court’s bright-line rule for applying the automobile exception would severely undercut the ironclad Fourth Amendment protections that have historically applied to private homes.

The state replies that the automobile exception has always operated as a bright-line rule, rather than a case-by-case determination. The categorical nature of the exception aligns with the justification for it, since the ready mobility of a vehicle effectively creates per se exigent circumstances that justify a departure from the warrant requirement no matter where the car is located. The probable cause requirement, the state argues, effectively guards against unjustified intrusions. Alternatively, however, the state argues that if the Court finds that the automobile exception does not apply on private property, it should limit this carve-out from the exception so that it operates only inside the home or other physical structures.

Collins might serve as a useful gauge of the Court’s recent trend toward property-based Fourth Amendment analysis and its continued viability following the death of Justice Scalia (the author of Jardines). Of course, even if the Court finds that the automobile exception does not apply within the home or curtilage, it might not be enough for Collins: Although the state assumed for the sake of argument that Collins’s motorcycle was located in the curtilage, it asks the Court to remand the issue to the state court if necessary to resolve the case.

January 10


Husted v. A. Philip Randolph Institute
No. 16-980; 6th Cir.

Voting is a critical part of the United States’ political system because it allows citizens to participate in shaping our democracy. Citizens’ votes affect change on all levels—local, state, and federal—where they not only vote on propositions and policies, but also for the individuals who will be tasked with implementing those items. Voting is a right granted to citizens so that each person, regardless of ideals, race, gender, or any other characteristic, is entitled to voice their opinion. As Justice Ginsburg reminded us during the Gill v. Whitford oral arguments, the United States system is grounded upon “one person, one vote.”

The concept of one person, one vote is important because as long as there has been voting, there have been attempts at, and claims of, voter fraud. Whether it was organized crime bosses telling people to “vote early and vote often,” Boss Tweed of Tammany Hall, or President Trump’s claims that millions of people voted illegally in the most recent election, voter fraud is a common topic of conversation and one that must be prevented, especially when elections, such as the 2000 Presidential election, can be decided by a handful of votes.

In order to effectively monitor who can vote, state’s must occasionally purge voter rolls to ensure that citizens who have moved, died, or are otherwise no longer eligible to vote in a jurisdiction’s election do not remain on the voter roll. While there are many ways to decide which voters should be removed from voter rolls, not all are equally effective. Whether the method Ohio uses is appropriate will soon be determined by the Supreme Court.

Ohio’s process for clearing the State’s voter roll of citizens is to use nonvoting as the trigger. Ohio sends notices to individuals who have not voted in the last two years. If no response is received from these individuals and the individual does not vote over the next four years, the voter is removed from the voter roll. Thus, simply because a voter elects not to vote for six years, for whatever reason, and fails to respond to a mailed notice, they will be removed from Ohio’s voter roll.

The plaintiffs in this case sued Ohio’s Secretary of State arguing that the “Supplemental Process,” implemented by Ohio to remove voters from the voter rolls “who are no longer eligible to vote due to a change of residence,” was not only inappropriate, but that it also violated the National Voter Registration Act of 1993 (the “Act”). A. Phillip Randolph Inst. v. Husted, 838 F.3d 699, 702 (6th Cir. 2016) The Act specifically states that: “Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office . . . shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of a person’s failure to vote.” 52 U.S.C. § 50207(b)(2).

The Secretary of State countered this argument by pointing out that the Act was modified by the Help America Vote Act of 2002 (“HAVA”) which adds limiting words to section (b)(2). HAVA states that “no registrant may be removed solely by reason of a failure to vote.” 52 U.S.C. § 21083(a)(4)(A).

The Sixth Circuit agreed with the plaintiffs and held that HAVA’s language does not change the analysis because the trigger to remove a voter from the rolls is “ultimately based ‘solely’ on a person’s failure to vote.” Husted, 838 F.3d at 711. The Supreme Court agreed to hear the case to decide whether “52 U.S.C. § 20507 permit[s] Ohio’s list maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter” under the National Voter Registration Act and the Help America Vote Act. The outcome of this case could affect voter maintenance procedures in many states, and ultimately determine whether voters have been incorrectly removed from voter rolls.

January 16


Hall v. Hall
No. 16-1150; 3d Cir.

There are those who insist on never conducting business with family members. Samuel Hall would have been wise to heed that advice. Samuel had been close to his mother Ethlyn Hall, an elderly landowner in the Virgin Islands, and had provided legal services to her free of charge. At one point, however, Samuel tried to develop one of the parcels of land Ethlyn owned in St. John, and their relationship deteriorated. Ethlyn claimed Samuel took advantage of her and cut off contact with him. Ethlyn’s health began to deteriorate so she moved to Florida to live with her daughter Elsa. Ethlyn altered her trust to designate Elsa as the sole successor trustee and filed suit against Samuel as both her attorney and as trustee of her inter vivos trust.

While motions in that case were pending, Ethyln died and Elsa took over as the personal representative of the Estate and the sole trustee of the trust. Samuel proceeded to file suit against Elsa in her individual capacity arguing that Elsa turned their mother against Samuel, took Ethlyn from the Virgin Islands without informing the family, and kept her hidden until her death. Samuel’s claims against Elsa were consolidated with the Estate’s claims against him.

At trial, the only claims remaining after various dismissals were the Estate’s fraud, unjust enrichment, and breach of fiduciary duty claims, and Samuel’s intentional infliction of emotional distress claim. The jury rejected all of the Estate’s claims and found Elsa liable for intentional infliction of emotional distress in the amount of $500,000 compensatory and $1,500,000 punitive damages.

Upon the verdict, the Estate immediately filed an appeal on its claims against Samuel. Elsa also filed a motion for a directed verdict or a new trial. It was concluded that the jury may have relied on a legally untenable basis for finding intentional infliction of emotional distress and a new trial was ordered.

Although Samuel’s claims warranted a new trial, the Estate’s appeal moved forward. Samuel filed a motion to dismiss arguing that the Third Circuit lacked jurisdiction because his claims against Elsa were still pending in District Court. The Estate’s argued that, although the cases were consolidated below, the district court entered two separate final judgements and the cases should not be consolidated for appeal. The Third Circuit determined that the factors of the case, such as the overlap of the claims, the relationship of the parties, and the fact that they had already been heard together deemed it appropriate that they be consolidated on appeal. Thus, the Third Circuit dismissed the Estate’s appeal for lack of jurisdiction until Samuel’s claims had been retried below.

The Estate appealed this decision to the Supreme Court, relying on the recent decision in Gelboim v. Bank of America, 135 S.Ct. 897 (2015), in which the Court held that a final judgement in a case was appealable even though that case was part of a multidistrict litigation in which other claims still remained. The Third Circuit distinguished that case by stating it is inapplicable because consolidation in multidistrict litigation is only used for pretrial matters. The Estate, however, wishes to know whether the Gelboim ruling should be extended to single district consolidated cases, so that the entry of a final judgment in one case triggers the appealability of that case.

Dalmazzi v. United States
No. 16-961; C.A.A.F.

What happens when a defendant who is tried, found guilty, and convicted by a court, appeals that conviction to an appellate panel who affirms the conviction, but on which a judge sits whose appointment might violate federal law? That is what the Court is set to decide in Dalmazzi v. United States.

Nicole Dalmazzi, a Second Lieutenant in the United States Air Force, was convicted by a military judge of using ecstasy, a controlled substance. She was sentenced to dismissal from the Air Force and confinement for one month. The United States Air Force Court of Criminal Appeals (“AFCCA”) affirmed the findings and sentence. Shortly thereafter, Dalmazzi moved the AFCCA to vacate its decision because of the participation of the United States Court of Military Commission Review (“USCMCR”) Judge Martin Mitchell on the panel. Before the AFCCA ruled on the motion, Dalmazzi appealed to the United States Court of Appeals for the Armed Forces.

In 2009, Congress established the USCMCR, which consists of at least one panel of at least three judges. The Secretary of Defense is authorized to assign persons who are military judges to the USCMCR as judges, and the President may appoint, with the advice and consent of the Senate, additional judges. In June of 2013, the Judge Advocate General of the Air Force detailed Judge Mitchell to serve as an appellate military judge on the AFCCA, and in October of 2014, the Secretary of Defense assigned Mitchell to be a judge on the USCMCR.

In In re Al-Nashiri, 791 F.3d 71, (D.C. Cir. 2015), the Court of Appeals for the District of Columbia expressed concern over whether judges on the USCMCR were principal officers, in which case the appointment by the Secretary of Defense would violate the Constitution. The court suggested that “the President and the Senate could decide to put to rest any Appointments Clause questions regarding the [US]CMCR’s military judges by . . . re-nominating and re-confirming military judges to be [US]CMCR judges.” Id. at 86. Thus, the President nominated Judge Mitchell for appointment as an appellate military judge on the USMCR. The Senate received the nomination on March 14, 2016, gave its advice and consent on April 28, and Judge Mitchell took his oath on May 2. President Obama signed his commission on May 25.

Judge Mitchell was one of three appellate military judges to participate in the AFCCA appeal affirming the findings and sentence of Dalmazzi. The AFCCA decision was issued on May 12, 2016, ten days after Mitchell took the oath of office but two weeks before his commission was signed. As such, Dalmazzi argues that as a USCMCR judge, Judge Mitchell was prohibited by 10 U.S.C. § 973(b)(2)(A)(ii)—which prevents an officer of an armed force on active duty from holding or exercising the functions of a civil office in the Government of the United States that requires an appointment by the President by and with the advice and consent of the Senate—from sitting on the AFCCA. Dalmazzi also argues that Judge Mitchell’s service on both the USCMCR and the AFCCA violated the Appointments Clause of the Constitution.

Because Judge Mitchell’s commission had not been signed until after the AFCCA decided Dalmazzi’s case, the Federal Circuit dismissed the appeal as moot. The Court, however, has agreed to hear the case, consolidated with two similar cases, to decide whether the case was in fact moot, whether Judge Mitchell’s service on the USCMCR disqualified him from continuing to serve on the AFCCA, and whether Judge Mitchell’s simultaneous service on both the USCMCR and the AFCCA violated the Appointments Clause.

January 17


Encino Motorcars, LLC v. Navarro
No. 16-1362; 9th Cir.

Encino Motorcars is back after being remanded to the Ninth Circuit. In April 2016, the Court heard arguments on whether “service advisors” were exempt from the Fair Labor Standards Act’s provisions on overtime. The FLSA requires employers to pay overtime to hourly employees who work more than forty hours a week, but includes exemptions for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” In a subsequent interpretive rule, the Department of Labor stated that service advisors were not included within the exemption.

What is a service advisor? Dean Morrison put it best in his response to the Court’s prior decision:

Suppose, for example, your car is there for a regular 30,000-mile checkup and the mechanic notices that the frapdazzle is on its last legs and should be replaced. He tells the service advisor, who calls you at work to get your permission to replace it. You ask him what he thinks, and he says something like, “well, you might be able to get another six months out of it, but if it goes, your car will stop running on the spot and it could be a lot more to fix it then than now, when the mechanic is already working on car.” How much you ask, and he quotes a price of $603.89 (including tax). You gulp and say, “I guess I should do it now” since you have no way of knowing whether the advice is correct and you can’t even go online to try to find out, let alone ask another shop for its opinion. The one thing that the service advisor has not told you is that he gets a commission for “selling” the extra $603.89 service. And it is that sales commission that gives rise to the employer’s claim that the service advisor is an exempt employee under the salesman provision quoted above.

In the prior case, the Ninth Circuit held that the language of the salesman, partsman, or mechanic exemption was ambiguous and that the Department of Labor’s interpretation of the exemption was reasonable. Thus, it found that Navarro was not exempt by deferring to the Department of Labor interpretive rule. The Supreme Court vacated and remanded the case back to the Ninth Circuit with direction to disregard the Department of Labor’s interpretive rule because the Department had not provided any reasoned explanation for why service advisors were not included in the exemption. On remand, the Ninth Circuit again ruled that Navarro was non-exempt, even though two other Circuits, the Fourth and the Fifth, have held otherwise.

The question presented this time around is the same as last: the Court must decide what the salesman, partsman, or mechanic exemption encompasses. It may decide that the statute clearly lists all the positions that the exemption includes. However, the Court may also hold that the statute itself is ambiguous and merits a Chevron analysis. If that is the case, the Court will then determine if the Department of Labor’s interpretation is reasonable and deserving of deference or is unreasonable. Whichever way the Court decides will have major ramifications for the automobile dealership industry. If the Court holds that service advisors are exempt from overtime requirements, dealerships can work service advisors as many hours a week as they are able and will not have to pay overtime. Going the other way, this could cost dealerships more money in wages in the future, and could also make them liable for heavy damages in back pay to any service advisors who have previously worked overtime and were not compensated. The only surety is that service advisors will finally get an answer from the high court.

McCoy v. Louisiana
No. 16-8255; La.

In 2011, Mr. McCoy was convicted and sentenced to death for the murder of the son, mother, and step-father of his estranged wife. Before trial, his public defender told him that he was going to concede that Mr. McCoy was guilty of second degree murder by reason of diminished capacity. The public defender told Mr. McCoy that he could not win the case and that conceding Mr. McCoy’s guilt would save his life. Mr. McCoy emphatically rejected this strategy and maintained his complete innocence. His public defender believed it was his ethical duty to concede Mr. McCoy’s guilt for two reasons: 1) because he could not prove that Mr. McCoy was not in Louisiana at the time of the murders and 2) because conceding to second degree murder would eliminate the death penalty at sentencing and thus save Mr. McCoy’s life. At trial, despite Mr. McCoy’s objections, his public defender conceded his guilt and told the jury “I’m telling you, Mr. McCoy committed these crimes.” Mr. McCoy told the judge that he did not want his public defender to represent him and that it was unconstitutional for the judge to allow his public defender to continue defending (or not defending) him.

Mr. McCoy then testified to his own innocence, while in closing arguments his counsel argued that he murdered his family, but that he could not have formed specific intent and thus should be guilty of only second-degree murder. The jury returned a verdict of first degree murder on all three counts and sentenced him to death the next day. The Louisiana Supreme Court affirmed the convictions and held, in relevant part, that the trial court did not err when it allowed his counsel to concede his guilt because it was a reasonable strategy, that failure to follow Mr. McCoy’s proposed innocence strategy did not deny him assistance of counsel because counsel did not fail to defend him but just chose a different strategy, and that the concession of guilt did not waive Sixth and Fourteenth Amendment rights because it was a reasonable strategy, and thus still assistance of counsel. The Louisiana Court relied on Florida v. Nixon, a 2004 Supreme Court decision in which the Court held that lawyers do not need to obtain a clients’ express consent before conceding guilt in a capital case. The Supreme Court will now decide whether a lawyer may concede the guilt of a client over the client’s express objection.

Louisiana argues that it is proper for lawyers to ignore their client’s wishes if the legal strategy is reasonable and that the Court should not apply a blanket rule of client consent that may hamper a lawyer’s strategic choices. Mr. McCoy argues that his public defender essentially switched sides from representing him to “selling him out” as he put it in the courtroom. In an amicus brief from a Louisiana non-profit, the group notes that a capital defendant in Louisiana essentially has “no right to a lawyer who will insist on his innocence” and that in four other capital cases since 2000, counsel were allowed to concede clients’ guilt over express objections.

The Court will have to decide as a matter of ethics whether the client’s instructions rule, as the Court held in the 1975 case of Faretta v. California, or if a reasonable litigation strategy outweighs a client’s express instructions. Because this decision will apply to capital cases, it will be interesting to see how the court balances the argument that a concession of guilt could save a client’s life against the argument that a lawyer works for his or her client.

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