Continued Limitations On Marital Surname Choice

This post was written by Associate Editor, Holly Duke.  The views and opinions expressed herein are those of the author alone.

When we got engaged, my husband and I had a conversation familiar to many getting married today: what to do about our surnames after marriage. We discussed keeping our birth surnames, jointly hyphenating, combining our birth surnames into a new name that was entirely our own, or the traditional option of him retaining his birth surname and me changing mine to his. To me, this was a large decision, and one that I felt had an impact on me as a feminist and woman. Ultimately, it took me two years to decide what I wanted to do, and I decided to change my surname to his. It was important to me that we share a name, and after researching the blended surname option, I found that it would be difficult to do. When I did decide to change my surname, the process was an easy one. But for couples that choose a non-traditional name change option, the process if often not as simple.

For hundreds of years, it was assumed that a woman would take her husband’s surname at marriage. This practice became entrenched in the European patriarchal political and social system and soon became part of the law.^[1] Today it is increasingly less common for women to take their husbands surname at marriage. In a survey completed by Google and reported in the New York Times, roughly 20% of women married in the last decade have kept their maiden names.^[2] In the alternative, some couples choose to blend their surnames through forming a new surname, and some choose to hyphenate their married and birth surnames. As non-traditional surname options at marriage are becoming increasingly popular, recent legal research suggests that many states do not accommodate men and women, especially men, who choose non-traditional surname options.^[3]

Surnames first became part of the legal record following the Norman Conquest of England and were originally used to distinguish different individuals as the English tradition of referring to individuals by one name became cumbersome.^[4]  Initially, it was not uncommon for women to hold surnames different from their husbands that reflected their own identities.^[5] This practice became less common in the eleventh century following the introduction of the law of coverture.^[6]  The law of coverture placed women under the legal authority of their husbands, with no legal identity of their own.^[7]  It became less common for women to own and inherit property, and the use of only the male surname became extremely prevalent.^[8]  English law, however, did not formally require a particular surname convention.^[9]

The United State adopted this legal framework.^[10] Despite the lack of a legal surname requirement on marriage, when women attempted to assert their right under the common law to choose their own surname at marriage – whether through hyphenation or retention of their birth surname – courts created legal precedent to encourage women to choose their husband’s surname.^[11]

The practice of a woman taking a man’s surname at marriage has been attacked by feminists as a gender bias that perpetuates gender inequality.^[12]  Women in the 1960s and 1970s began to challenge the social norms around name change and to fight for the right to choose their surname at marriage.^[13] This issue became a central cause of second wave feminism.^[14]  It became increasingly important to feminists to keep their surnames or hyphenate their birth surnames with their husband’s surnames to emphasize the importance of a woman’s identity apart from her husband.^[15] In the 1970s, legislation was introduced in several states which allowed  men and women to choose their surname at marriage. While this legislation was largely rejected, feminists did win the choice for a woman to keep her maiden name, take her husband’s surname or hyphenate at marriage.^[16]  Today, in every state but Louisiana, women have the ability to change their surname easily at the time of marriage.^[17]

According to a recent Google survey reported in the New York Times, the number of women who kept their maiden names declined since the conclusion of second wave feminism but is recently on the rise again.^[18]  In the 1970s, about 17% of women married for the first time kept their maiden name.^[19]  In the 1980s, about 14% of women kept their maiden name,^[20] and in the 1990s, about 18% of women kept their maiden name.^[21] A woman’s choice in her own name remains important for feminists as it signifies a woman’s ability to retain her own identity in marriage.^[22]

While more and more women are choosing to retain their birth surname, there is little research on how many men choose to take their wives’ name, as the belief is that this is extremely rare.  There is little research to confirm that is the case.^[23]  Recent studies support the proposition that many young men and women in the United States plan to conform to women adopting men’s last name at marriage.^[24]  Studies also show that men who change or hyphenate their names are viewed by their peers as less masculine and more feminine than men who do not change their surname at marriage.^[25]  This research shows that the social convention that women take their husband’s surname at marriage is still a strong influence in the United States, but resistance to this social norm seems to be on the rise.

If a man and woman do choose to change or blend their surnames, state laws do not always make it easy to do so. There has been a surge in scholarship urging states to change their laws limiting surname choice at marriage, as many states do not currently make this easy to do.^[26] Only nine states allow men to change their surnames at marriage – New York, Hawaii, Georgia, Massachusetts, Kansas, New Hampshire, California, North Dakota, and Louisiana.^[27] Only four states clearly allow for blended surnames –  California, New York, Kansas, and North Dakota.^[28] Three states allow for the adoption of any surname on marriage regardless of gender – Iowa, Massachusetts, and Minnesota.^[29] In other states, choice of surname is limited, and a formal, statutory name change is required.^[30]

States that limit marital surname options have been challenged on the basis of the Fourteenth Amendment’s Equal Protection Clause.^[31] States that do not allow men to change their name at marriage require men to go through a formal statutory name-change proceeding.^[32] By not providing men the same options to change their surname at marriage, scholars argue these laws discriminate against men.^[33]  With non-traditional surname choices on the rise once again in the United States, states will need to consider new legislation to provide more choices for couples who choose a non-traditional option, as many states currently are not equipped to do so.

---

[1] See Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1, 2 (2018).

[2] Claire Cain Miller and Derek Willis, Maiden Names, On the Rise Again, N.Y. Times, June 27, 2015, https://www.nytimes.com/2015/06/28/upshot/maiden-names-on-the-rise-again.html.

[3] See Hannah Haksgaard , Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 346 (2019)      (discussing the need for the option of blended surnames for both parties, regardless of gender).

[4] Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1, 4 (2018).

[5] Id. at 7.

[6] Id. at 8.

[7] Id.

[8] Id.

[9] Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1 , 9 (2018).

[10] Id.

[11] See Id. at 10(arguing “[d]espite the common law standard of flexibility and personal choice in surname usage, the practice of a wife surrendering her name for her husband’s was as close to a legal requirement during the modern period as it could be without having any actual legal support as such”).

[12] See Rachel R. Stoiko and JoNell Strough, ‘Choosing’ the Patriarchal Norm: Emerging Adult Marital Last Name Change Attitudes, Plans and Rationales, 34 Gender Issues 295, 297 (2017) (arguing that the “current heterosexual norm in the United States of a woman (and their future children) taking the last name of her husband after marriage is a form of linguistic gender bias that both reflects and perpetuates societal inequalities”).

[13] Id. at 297.

[14] See Id.

[15] Rachel R. Stoiko and JoNell Strough, ‘Choosing’ the Patriarchal Norm: Emerging Adult Marital Last Name Change Attitudes, Plans and Rationales, 34 Gender Issues 295, 295-296 (2017).

[16]Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev 307, 313 (2019).

[17] Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1, 21 (2018).

[18] Claire Cain Miller and Derek Willis, Maiden Names, On the Rise Again, N.Y. Times, June 27, 2015, https://www.nytimes.com/2015/06/28/upshot/maiden-names-on-the-rise-again.html.

[19] Id.

[20] Id.

[21] Id.

[22] See Masumi Arichi, Is It Radical? Women’s Right to Keep Their Own Surnames After Marriage, 22 Women’s Stud. Int’l. F. 411, 411 (1999).

[23] See Catherine Pearson, Why Men Don’t Take Their Wives’ Names, According to Some Who Did, HuffPost, December 6, 2017, https://www.huffpost.com/entry/men-still-dont-take-their-wives-names-but-why-not_n_7587388 (quoting Laurie Scheuble, a senior lecturer at Penn State who states that it may be so rare that “any survey would have trouble picking it up”).

[24] See Rachel R. Stoiko and JoNell Strough, ‘Choosing’ the Patriarchal Norm: Emerging Adult Marital Last Name Change Attitudes, Plans and Rationales, 34 Gender Issues 295, 307 (2017) for a stufy of US college students in which roughly 85% of men’s and 90% of women’s plans conformed to the patriarchal norm of women adopting men’s last names upon marriage.

[25] Emily Fitzgibbons Shafer, Hillary Rodham Versus Hillary Clinton: Consequences of Surname Choice in Marriage  34 Gender Issues 316, 320 (2017).

[26] See Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 317 (2019).

[27] Id. at 319.

[28] Id. at 317.

[29] Id.

[30] See Michael Rosensaft, Comment, The Right of Men to Change Their Names Upon Marriage, 5 U. Pa. J. Const. L. 186, 188 (2002).

[31] Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 314 (2019).

[32] See Michael Rosensaft, Comment, The Right of Men to Change Their Names Upon Marriage, 5 U. Pa. J. Const. L. 186, 188 (2002). See also Michael Mahoney Frandina, Note, A Man’s Right to Choose His Surname in Marriage: A Proposal, 16 Duke J. Gender L. & Pol’y 155, 162 (2009).

[33] Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 314 (2019).

Timbs and the Future of Civil Forfeiture

This post was written by Associate Editor, Tanner Duncan.  The views and opinions expressed herein are those of the author alone.

Imagine you are driving down the highway when suddenly, blue lights flash in the rearview mirror. Your heart sinks as you pull the car over to the side of the road. As you check your mirror, instead of seeing the standard Crown Victoria police cruiser or maybe even a Chevy Charger, you spot a customized racing Corvette with over 1,000 horsepower; a perplexing trophy for a publicly funded local police department.

Seized in connection with a drug raid in Texas, a Corvette of that very description is now the prized possession of the New Braunfels Police Department.[1] Corvettes, Hummers with bumper stickers flashing “I used to belong to a drug dealer,” large sums of cash, and even homes can all be seized in a procedure known as civil forfeiture. In many cases, seized personal property winds its way back into the hands of local police departments. However, in a recent unanimous United States Supreme Court decision, Timbs v. Indiana, civil forfeiture may look quite different in the future, if it remains at all.[2]

Civil forfeiture is defined as, “an in rem proceeding brought by the government against property that either facilitated a crime or was acquired as a result of criminal activity.”[3] Separate from the criminal case against the person, this civil suit brought against property can range from a car used to smuggle drugs, a house used to manufacture street drugs, or even large sums of cash merely suspected of being used to purchase drugs. The initiation of an in rem civil suit (referring to a case in which property rather than a person is the defendant) prevents the owner from participating in the case despite the owner being the one deprived of the property.[4] Further, the personal property targeted by an in rem action does not have all the constitutional protections as a person would in a criminal case.[5] As a result, targeted personal property is frequently seized by the government with relative ease.[6]

In 2015, Tyson Timbs pleaded guilty to dealing a controlled substance and conspiracy to commit theft in an Indiana state court. Timbs had recently purchased a Land Rover SUV valued at $42,000 from the proceeds of his father’s insurance policy following his father’s death. Authorities attempted to seize the vehicle, alleging that it had been used to transport heroin in Mr. Timbs’ underlying crime. Both the trial court and the appellate court denied the state’s attempt, holding the seizure unconstitutional under the Eighth Amendment’s Excessive Fines Clause as the value of the vehicle was more than four times the maximum fine attributable to Mr. Timbs ($10,000).[7] Despite the underlying courts’ decisions, the Indiana Supreme Court reversed, allowing the seizure of the vehicle through an in rem civil action.

Justice Ginsberg wrote the opinion for a unanimous court in Timbs v. Indiana, which selectively incorporated the Excessive Fines Clause of the Eighth Amendment; one of the few clauses left to be selectively incorporated.[8] Reciting the well-known standard, the Excessive Fines Clause was recognized as “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”[9] Impliedly admonishing the Indiana Supreme Court, Justice Ginsberg opined that, “there is no daylight between the federal and state conduct it prohibits or requires.”[10] Even with the incorporation of the Clause, the Court was neither instructive of what circumstances invoke the right against excessive fines nor what qualifies as an excessive fine. Each in their own concurrences, Justice Gorsuch and Justice Thomas identified the Fourteenth Amendment’s Privileges and Immunities Clause as the proper vehicle for incorporation, though each agreed in the conclusion.

But how could the Indiana Supreme Court get it so wrong? Both the U.S. Constitution and the Indiana Constitution disallow excessive fines.[11] However, a deeper dive into the nature of civil forfeiture reveals a lucrative operation in which states, particularly their police departments, heavily rely upon forfeiture revenues.[12] Will Timbs be the end of civil forfeiture, spelling disaster and bankruptcy for local police departments?

The reality is that Timbs has raised more questions than it has answered. Despite the opinion being released on February 20, 2019, a United States District Court opinion for the Northern District of Florida was released on March 5, 2019 which found Timbs unhelpful in determining what constitutes an “excessive fine.”[13] United States v. Masino involved a Florida police department seizing proceeds of criminal offense.[14] The Masino court identified that a limit could be set on the seizure of personal property at a fixed amount multiplied by the maximum penalty.[15] This approach is not unheard of, as the Supreme Court has previously put a cap on punitive damage awards in civil cases as a constitutional matter.[16]

The second approach, which the Masino court chose to follow, satisfies the proportionate amount by determining how the property was acquired.[17] In this way, the court distinguished the seizure of Timbs’ SUV as unconstitutional as it was purchased with “clean” money through the proceeds of his father’s insurance policy whereas the cash seized in Masino would be permissible as it was laundered money. If the Masino approach is permissible, it seems Timbs did little to rein in civil forfeiture, let alone usher it into extinction.

Despite rumors of a new wave of selective incorporation cases for civil cases, it seems that Timbs stands as a necessary yet unmalleable pillar in a progression of cases targeting the abuses of civil forfeiture. If nothing else, Timbs seems to expose the “legal fiction” of civil forfeiture: a “criminal-esque” punishment in the form of a one-sided civil case.[18] For now, it seems the best approach of dealing with the abuses of civil forfeiture lies within each state’s legislature. Until then, civil forfeiture remains a legal means for authorities to seize personal property without charging anyone with a crime, ignore the presumption of innocence, and sidestep due process.[19]

[1] Will Sabel Courtney, Texas Police Department Scores 1,005-HP Chevy Corvette Z06 Cop Car, The Drive, (March 26, 2019, 3:31 PM), https://www.thedrive.com/news/10658/texas-police-department-scores-a-1005-hp-chevy-corvette-z06-cop-car/.

[2] Timbs v. Indiana, 139 S. Ct. 682 (2019).

[3] Civil forfeiture, Black’s Law Dictionary (10th ed. 2014).

[4] In rem, Black’s Law Dictionary (10th ed. 2014).

[5] 3 Criminal Constitutional Law § 14B.04.

[6] See Id.

[7] U.S. Const. amend. VIII.

[8] See Robinson v. California, 370 U.S. 660 (1962) (where protection against cruel and unusual punishment was selectively incorporated) and Schilb v. Kuebel, 404 U.S. 357 (1971) (argued to have selectively incorporated protection against excessive bail).

[9] Timbs at 686-87 citing McDonald v. Chicago, 561 U. S. 742, 767 (2010).

[10] With the admitted exception of the Sixth Amendment requirement of jury unanimity in federal, but not state, criminal proceedings; Timbs at 687.

[11] U.S. Const. amend. VIII; Ind. Const. Art. 1, § 16.

[12] See generally Adam Crepelle, Article: Probably Cause to Plunder: Civil Asset Forfeiture and the Problems it Creates, 7 Wake Forest J. L. & Pol’y 315 (2017).

[13] United States v. Masino, 2019 U.S. Dist. LEXIS 34862 (N.D. Fla. Mar. 5, 2019).

[14] Id.

[15] Id. at *31 citing United States v. Bajakajian, 524 U.S. 321 (1998).

[16] See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) (where the Court limited punitive damages awards in civil cases to single-digit ratios as compared to the compensatory award).

[17] Masino at *36-37.

[18] Crepelle, supra, note 12, at 341-42.

[19] See generally Crepelle, supra, note 12.

The Fines They are a Changin’: The Future Impact of Timbs v. Indiana on Civil Forfeiture

This post was written by Associate Editor, Nathan Truitt.  The views and opinions expressed herein are those of the author alone.

The Supreme Court recently decided a case which granted criminal defendants new constitutional guarantees, and these new guarantees will impact how police deter crime. That case is Timbs v. Indiana, and the primary issue was whether states should be subject to the Excessive Fines Clause. [1] Because the Bill of Rights was adopted to protect against federal overreach, its guarantees did not initially restrict state activity.[2] This changed, however, following the adoption of the post-Civil War amendments – in particular, the Fourteenth Amendment. [3]   Since the 1940s, the Court has incorporated particular Bill of Rights guarantees through the Fourteenth Amendment’s Due Process Clause, thus making them applicable to the states.[4] Most Bill of Rights guarantees have long been incorporated, but five of them had yet to be incorporated prior to Timbs v. Indiana.[5] Now, only four rights remain unincorporated because the Court unanimously held that the Excessive Fines Clause fully applies to the states.[6]

The Eighth Amendment’s Excessive Fines Clause exists with two parallel provisions that similarly restrict the government’s ability to punish wrongdoers. The Eighth Amendment trifecta provides that individuals should be free of excessive bail, excessive fines, and cruel and unusual punishments.[7] Protections against excessive fines can be traced back to 1215 and the Magna Carta.[8] Despite the Magna Carta’s protections, exorbitant fines were imposed during the Seventeenth Century because some English judges held that the “Magna Carta did not apply to fines for offenses against the Crown.”[9] And predictably, English courts used this latitude to impose excessive fines against political enemies.[10] The Glorious Revolution finally brought an end to this abuse as the House of Commons drafted “articles concerning essential law and liberties” – the English Bill of Rights.[11]

It is against this backdrop that the Framers included the right to be free from excessive fines within our Constitution.[12] As JuTrstice Story noted, the Eighth Amendment “is an exact transcript of [the] clause in the [English] bill of rights, framed at the [Glorious Revolution].”[13] Not only was protection against excessive fines important on a national level, but in 1791, ten of the fourteen states, comprising seventy-eight percent of the population, had constitutional provisions prohibiting excessive fines.[14] More importantly, this right has retained its significance in the American system of justice.[15] Today, forty-seven state constitutions have explicit protections against excessive fines.[16]

In light of this history, incorporation of the Excessive Fines Clause was uncontroversial, as perhaps evidenced by the Court’s unanimous decision to do so.[17] Generally, the Supreme Court incorporates a right if it finds that the right is “fundamental to the [American] scheme of ordered liberty…or deeply rooted in this Nation’s history and tradition.”[18] As the Court in Timbs v. Indiana noted, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.”[19]

Even though incorporation of the Excessive Fines Clause was expected and hardly contested, its potential effect is much more controversial because it may diminish an integral tool for police to dismantle drug enterprises – in rem forfeitures. In rem forfeitures are a legal fiction whereby the government pursues a separate legal action against the property used in a crime – as though the instrument of the crime is independently guilty.[20] Incorporation of the Excessive Fines Clause potentially limits this crime-deterrent tool because in Austin v. United States, the Supreme Court held that the Excessive Fines Clause also applies to federal in rem forfeiture actions, so long as the forfeiture is at least partially punitive.[21] The Austin Court reasoned that the purpose of the Eighth Amendment “was to limit the government’s power to punish,” and that the “Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.”[22] Accordingly, if an in rem forfeiture is at least partly punitive, it constitutes a fine and is subject to the Excessive Fines Clause.[23]

Including in rem forfeitures into Excessive Fines Clause jurisprudence is somewhat ironic because this country has a storied history of seizing property through forfeiture actions, and those forfeitures have at times been grossly excessive. As an example, an 1819 statute permitted the forfeiture of a four-hundred-ton ship because the ship had 178 passengers – one above the legal limit.[24] Today, in rem forfeitures are used extensively by law enforcement to dismantle criminal enterprises by taking the illicit monetary gains and the personal and real property used in the criminal enterprise.[25] The effectiveness of in rem forfeitures as a crime-deterrent tool comes from their severity. Where police may only be able to catch a sophisticated narcotics enterprise in a few of its many illegal transactions, the ability to forfeit the criminal instrumentalities helps police more effectively dismantle the entire operation. If a criminal enterprise is operated out of a building, distributed by vehicles, and in possession of a boatload of cash from its sales, police could potentially confiscate all of these assets for even a few illicit transactions.

But of course, every effective policing tool carries with it an inherent risk of governmental abuse. As Justice Scalia noted, “[t]here is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribution and deterrence.”[26] The reason is simple – “fines are a source of revenue.”[27] Like every other policing tool, constitutional rights must not be forgotten in the pursuit of deterring crime. Timbs v. Indiana provides a good example of how this decision might impact drug prosecutions – for good or bad. Tyson Timbs, an Indiana resident, used life-insurance proceeds from his father’s death to purchase a Land Rover for $42,000, and he subsequently used the vehicle to transport and sell heroin.[28] Timbs pled guilty to felony charges, as part of his sentencing, and was ordered to pay fines totaling $1,203.[29] Indiana also filed a forfeiture action against the Land Rover, but the trial court denied the State’s request, reasoning that the forfeiture would be grossly disproportionate to the gravity of the offense.[30] The maximum statutory fine was $10,000, and the Land Rover was worth approximately four times that amount.[31]

Now that the Supreme Court has incorporated the Excessive Fines Clause, this type of analysis will be required in every state forfeiture case. How that affects the ability of police to combat criminal organizations remains to be seen, but it will certainly have an impact. Alternatively, it seems plausible that some courts will begin using different metrics by which to determine disproportionality – something to which Justice Alito seemed to allude during oral argument for Timbs v. Indiana.[32] As Justice Alito noted, the maximum imprisonment for Timbs’s offense was twenty years imprisonment, and by that comparison, is forfeiture of a $42,000 Land Rover Excessive?[33] Courts will have this and many other questions to determine as states must now follow the Supreme Court’s Excessive Fines Clause jurisprudence.

[1] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019).

[2] Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243, 247 (1833).

[3] McDonald v. Chicago, 561 U.S. 742, 754 (2010).

[4] Id. at 764 n.12.

[5] See, e.g., id. at 765 n.13.

[6] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019).

[7] U.S. Const. amend. VIII.

[8] Timbs, 139 S. Ct. at 687.

[9] Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 290 (1989) (O’Connor, J., concurring in part and dissenting in part).

[10] Id.

[11] Id.

[12] See Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 663 (1996) (stating that the Magna Carta and the English Bill of Rights “stood…as a towering common law lighthouse of liberty–a beacon by which framing lawyers in America consciously steered their course”)

[13] Joseph Story, Commentaries on the Constitution of the United States 710-11 (1833 ed.)

[14] See Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition?, 85 S. Cal. L. Rev. 1451, 1517–18 (2012).

[15] See Timbs v. Indiana, 139 S. Ct. 683, 689 (2019) (stating that “the protection against excessive fines has been a constant shield throughout Anglo-American history…”).

[16] Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. L.Q. 833, 877 (2013).

[17] See id. at 689 (stating that “[t]oday, acknowledgment of the right’s fundamental nature remains widespread”).

[18] McDonald v. Chicago, 561 U.S. 742, 767 (2010) (internal quotation marks omitted).

[19] Timbs, 139 S. Ct. at 689.

[20] See Various Items of Pers. Prop. v. United States, 282 U.S. 577, 581 (1931) (stating that when the forfeiture action is in rem, it “is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient”).

[21] Austin v. United States, 509 U.S. 602, 622 (1993).

[22] Id. at 609-10 (internal quotation marks omitted).

[23] Id. at 622.

[24] United States v. The Louisa Barbara, 26 F. Cas. 1000, 1001 (E.D. Pa. 1833).

[25] Alice W. Dery, Overview of Asset Forfeiture, Bus. L. Today (June 21, 2012), http://apps.americanbar.org/buslaw/blt/content/2012/06/article-02-dery.shtml.

[26] Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)

[27] Id.

[28] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019)

[29] Id.

[30] See State v. Timbs, 62 N.E.3d 472, 476-77 (Ind. Ct. App. 2016) (affirming the trial court’s judgment that the forfeiture was “grossly disproportional”) overruled by State v. Timbs, 84 N.E.3d 1179, 1183 (2017).

[31] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019).

[32] Transcript of Oral Argument at 9-10, Timbs v. Indiana, 139 S. Ct. 683 (No. 17-1091) (questioning whether forfeiture of the Land Rover is unconstitutional considering the maximum imprisonment for Timb’s offense).

[33] Id.

What Happens When The Government Effectively Takes The Farm And Doesn’t Want To Pay For It?

This post was written by Associate Editor, Tyler Arnzen.  The views and opinions expressed herein are those of author alone.

The Fifth Amendment of the Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”[1] This language is partially mirrored in and is made applicable to the individual states in the Fourteenth Amendment.[2] Based upon this, an aggrieved individual should have the right to sue a state, in federal court, whenever an uncompensated taking of his or her property has occurred. This ensures that he or she is compensated for the injury. Unfortunately, it is far from as easy, as one particular individual, Rose Mary Knick, learned.

The Township of Scott in Lackawanna County, Pennsylvania enacted an ordinance requiring all cemeteries, both public and private, to be open to the public during daylight hours and granted Code Enforcement Officers the right to enter private land to determine if a cemetery existed on the property.[3] One such Code Enforcement Officer entered Ms. Knick’s land and determined that an old gravesite existed on the property.[4] He immediately issued her with a violation and fine for not allowing people onto her property as required by the town ordinance.[5] Ms. Knick brought the issue up with the County Court of Common Pleas but the court refused to issue a ruling on the matter, stating that it was the improper venue to hear the case.[6] She then went to the United States District Court for the Middle District of Pennsylvania where her case was dismissed for her failure to exhaust all state remedies.[7] The issue of exhaustion of state remedies has since been advanced through the Third Circuit Court of Appeals up to the Supreme Court where it has been thoroughly briefed and has twice been argued before the Court.[8]

The issue now before the Supreme Court has to do with the necessity of exhausting all state remedies before the case can be brought to federal court.[9] This, in essence, creates an additional requirement on top of the traditional ripeness requirement for a claim. The current requirement, announced in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, is that the state must make a final ruling on whether a regulation has affected a taking of a property interest before the case can be brought to federal court.[10] Essentially, the aggrieved party must first exhaust all potential remedies at the state level before they can ever have their claim considered in federal court.

Unfortunately, this leads to the underlying claim often being barred from ever being heard in federal court because of claim preclusion resulting from the full faith and credit clause of the United States Constitution.[11] This issue of claim preclusion has been brought before the Supreme Court in San Remo Hotel, L.P. v. City and County of San Francisco, but the Court has refused to create an exception to the requirement.[12] This has effectively slammed the doors of the federal courts on property owners who have tried to gain admittance by following the Court’s ruling in Williamson.

While certain justices have openly questioned the existing exhaustion requirement this is the first case where the facts readily call for a revocation of the doctrine.[13] A revocation would be a monumental change to existing property law regarding condemnation claims, however, it would fit nicely with how other claims involving Constitutional violations are typically handled. Claims of Constitutional violations are often brought under 42 U.S.C. 1983 which has no innate requirement that the possible state remedies be exhausted before the claim can be pursued in Federal Court.[14] If a claim such as Ms. Knick’s were capable of being brought under 42 U.S.C. 1983 she would be able to immediately go to a federal court to have the issue considered. This differs from the current process of winding her way through the state system in an often expensive battle before she has the opportunity to file in federal court. This assumes, of course, that her claim is not precluded by the very act of going through the state system. This change would save litigants considerable time and cost in pursuing compensation which is guaranteed to them under the Constitution if a taking has occurred.[15]

Since the case has been extensively briefed by both parties, numerous amici curiae briefs have been filed, and the case has been argued twice, a revocation of the exhaustion requirement may be imminent. If a change does occur then Ms. Knick will have won a victory that will benefit property owners across the country.

[1] U.S. Const. amend. V.

[2] U.S. Const. amend. XIV, § 1.

[3] Knick v. Twp. of Scott, 862 F.3d 310, 314-15 (2017).

[4] Id. at 315

[5] Id.

[6] Id.

[7] Id.

[8] Knick v. Township of Scott, Pennsylvania, SCOTUSblog (Mar. 19, 2019, 8:25 PM), https://www.scotusblog.com/case-files/cases/knick-v-township-scott-pennsylvania/.

[9] Petition for a Writ of Certiorari at i, Knick v. Twp. of Scott, No. 17-647 (U.S. October 31, 2017); Knick v. Twp. of Scott, No. 17-647, 138 S. Ct. 1262 (Mar. 5, 2018) (certiorari granted as to question 1).

[10] Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 197 (1985).

[11] U.S. Const. art. IV, §1.

[12] San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005).

[13] See Arrigoni Enters., LLC v. Town of Durham, 136 S. Ct. 1409 (2016) (Thomas, J. dissenting from denial of certiorari).

[14] 42 U.S.C. §1983 (2019).

[15] U.S. Const. amend. V.

When Do a Rap Artist’s Lyrics Become a “True Threat”? SCOTUS Has an Opportunity to Answer

This post was written by Associate Editor, Michael Votel.  The views and opinions expressed herein are those of the author alone.

“You Never Thought That Hip Hop Would Take It This Far”[1]

One might reasonably believe that, over 225 years after its ratification, First Amendment law would be settled by now. However, courts adjudicating First Amendment cases are often met with unique challenges. This is especially true as our country’s culture continues to evolve and things that were once considered unacceptable make their way into the mainstream.[2] What is firmly established is that certain types of speech, including true threats, do not receive First Amendment protections.[3] However, what is not so firmly established is what exactly constitutes a true threat.[4]

The Supreme Court recently had an opportunity to answer the true threat question in Elonis v. United States.[5] In Elonis, the defendant, Mr. Elonis, was convicted under 18 U.S.C. § 875(c), which makes it illegal to transmit threatening communication to injure the person of another.[6] Mr. Elonis posted graphically violent language and imagery, mainly in the form of self-written rap lyrics, directed towards his estranged wife and others on Facebook.[7] Mr. Elonis argued that the government should have to prove that he intended to communicate a true threat.[8] The government argued that it only needed to prove that a reasonable person would regard Mr. Elonis’s communication as a threat, which is essentially a negligence standard.[9] Ultimately, the Court held that negligence alone is not enough to convict a defendant under 18 U.S.C. § 875(c).[10] However, the Court declined to define exactly what level of intent is necessary to sustain a conviction under such a statute.[11]

Because the Supreme Court declined to review the potential First Amendment issue in Elonis, the Court’s decision has done little to help the confusion regarding the true threat doctrine.[12] Fast-forward to today and the Supreme Court has an excellent opportunity to resolve this issue. In 2012, Jamal Knox, a Pittsburgh rapper who raps under the name Mayhem Mal, was arrested on gun and drug charges.[13] While these charges were pending, Mr. Knox wrote and recorded a rap song entitled “F–k the Police.”[14] As the name might suggest, Mr. Knox’s song included descriptions of killing police officers and other graphic depictions of violence.[15] Additionally, Mr. Knox’s song specifically named two of the officers involved in his earlier arrest.[16] Based solely on his song, Mr. Knox was charged with making terroristic threats and with witness intimidation.[17] Mr. Knox was convicted on these charges and his conviction was affirmed by the Supreme Court of Pennsylvania.[18] The Supreme Court of Pennsylvania held that a statement can constitute a true threat based solely on the speaker’s subjective intent regardless of the context in which the speech was made.[19] Mr. Knox filed his petition for a writ of certiorari on January 18, 2019.

Mr. Knox’s main argument is that his song did not constitute a true threat and was therefore constitutionally protected under the First Amendment.[20] Mr. Knox argues that the Supreme Court of Pennsylvania erred when it did not consider how a reasonable person would view his song in the context of rap music.[21] Essentially, Mr. Knox would have courts, at the very least, apply an objective test that would prevent the government from censoring speech based solely on the speaker’s subjective intent.[22] Mr. Knox is not alone in holding this view and a coalition of legal scholars and famous rap artists, such as Chance the Rapper, Meek Mill, and Killer Mike, have come to Mr. Knox’s aid.[23] Along with the filing of their amicus brief, the rap artists have also offered the Supreme Court “a primer on rap music and hip-hop.”[24] This is, of course, being offered in the hopes that the Supreme Court will adopt an objective true threat test that will take rap’s history and tone into consideration.

As of today, the Supreme Court has yet to determine whether it will grant certiorari to Mr. Knox, but it is likely that the Court will want to put this First Amendment issue to rest. In Elonis, both Justice Alito and Justice Thomas wanted the Court to more clearly define the true threat doctrine.[25] Justice Sotomayor has also shown interest in resolving the true threat issue once and for all.[26] If the Court grants certiorari, how it will decide is somewhat of a toss-up. Two justices have been replaced since the Court’s decision in Elonis and it is unclear how they and the justices who were part of the majority in Elonis will decide given the unique facts of Mr. Knox’s case. No matter how the Court would ultimately decide, hopefully it will take this fantastic opportunity to settle the true threat doctrine for good.

[1] Notorious B.I.G., Juicy, on Ready to Die (Bad Boy & Arista Records 1994).

[2] See Jon Christopher Wolfe, Sex, Violence, and Profanity: Rap Music and the First Amendment, 44 Mercer L. Rev. 667, 679-80 (1993).

[3] See Elonis v. United States, 135 S. Ct. 2001, 2016 (2015) (Alito, J., concurring and dissenting) (citing Virginia v. Black, 538 U.S. 343, 359-60 (2003); R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992); Watts v. United States, 394 U.S. 705, 707-08 (1969)).

[4] Id. at 2012-13.

[5] Id.

[6] Id. at 2004.

[7] Id. at 2004-07.

[8] Id. at 2007.

[9] Elonis, 135 S. Ct. at 2008.

[10] Id. at 2012.

[11] Id. at 2012-13.

[12] See Clay Calvert & Matthew D. Bunker, Fissures, Fractures & Doctrinal Drifts: Paying the Price in First Amendment Jurisprudence for a Half Decade of Avoidance, Minimalism & Partisanship, 24 Wm. & Mary Bill of Rts. J. 943, 957 (2016).

[13] Commonwealth v. Knox, 190 A.3d 1146, 1148-49 (Pa. 2018), petition for cert. filed, 87 U.S.L.W. 3313 (U.S. Jan. 18, 2019) (No. 18-949).

[14] Id.

[15] Id. at 1149.

[16] Id.

[17] Id. at 1150.

[18] Id. at 1161.

[19] Knox, 190 A.3d at 1161, petition for cert. filed, 87 U.S.L.W. 3313 (U.S. Jan. 18, 2019) (No. 18-949).

[20] Petition for Writ of Certiorari at 14-15, Knox, 190 A.3d 1148 (No. 18-949).

[21] Id. at 17-20.

[22] Id.

[23] See generally Brief of Amici Curiae Michael Render (“Killer Mike”), Erik Nielson, and Other Artists and Scholars in Support of Petitioner, Knox, 190 A.3d 1148 (No. 18-949).

[24] Adam Liptak, Hip-Hop Artists Give the Supreme Court a Primer on Rap Music, N.Y. Times, March 6, 2019.

[25] See Elonis v. United States, 135 S. Ct. 2001, 2013-14 (2015) (Alito, J., concurring and dissenting); see also Elonis, 135 S. Ct. at 2018 (Thomas, J., dissenting).

[26] See Perez v. Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor, J., concurring in the denial of certiorari).

From Books to Bots: How Artificial Intelligence is Shaping the Traditional Legal Framework

This post was written by Associate Editor, Haley Pannell.  The views and opinions expressed herein are those of the author alone.

As the world around us revolves and our culture is shaped by advances in technology, the legal field has been mostly hesitant and less willing to adopt new practices.[1] But in recent years, it has become evident that technological advances are continuously being introduced into the legal market and are substantially changing how lawyers work each day.[2] Due to the level of heightened efficiency and speed that new legal programs offer, lawyers feel an obligation to utilize advanced services in order to keep up.[3]

Artificial intelligence is a type of technology that provides website users, specifically seeking legal assistance, with an immediate interaction over the internet that is similar to engaging with a human being.[4] A user will pull up a webpage, then an automatic, interactive conversation tab will begin to help navigate the website, and the user will start to receive answers right away. It’s likely that many of us have had one of these interactions with a robot behind the screen. What makes this method so effective? Artificial intelligence robots have a handful of practical skills in their tool belt, such as: the ability to reason, to discover meaning, to generalize, and the ability to learn from past experience in order to grow stronger and more accurate to prepare for future interactions.[5]

Legal areas that are most likely to be affected by artificial intelligence are items that resemble a more “fill in the blank” process. Tasks such as scanning and predicting which documents will be relevant to a case or filling in contract terms are at the center of artificial intelligence’s takeover focus.[6] On the other hand, lawyers will still provide expertise in the areas of negotiating, providing legal analysis, and advising and advocating for clients.[7] Professionals within the technology sphere believe that these are tasks that are unique to a lawyer’s skill set and are beyond the reach of computerization for quite a while.[8]

Some may say that the presence of artificial intelligence serves as a threat to a lawyer’s job security, but the truth is that it is not taking away opportunities. Instead, technology advances, and specifically artificial intelligence, make a lawyer’s life easier.[9]  For example, there are numerous programs that are on the market today that law firms across the nation have willingly purchased to execute their daily workload with speed and increased accuracy.[10] Programs such as “Kira”, “ROSS”, “Rocket Lawyer”, and numerous other companies cater their services to appeal directly to lawyers.[11] These programs provide lawyers with a platform to keep up with a profession that continues to raise the bar due to advances in technology.[12]

There have been a number of ethical challenges that members within the legal community have raised regarding this topic.[13] The primary ethical issues address whether these practices go beyond the scope of licensed and authorized practices of law.[14] Specifically, in cases such as Janson v. LegalZoom.com, Inc. and Medlock v. LegalZoom.com, Inc., state supreme courts have held that companies promoting artificial intelligence are not engaged in unauthorized practice of law.[15] Although this type of “do it yourself” legal documentation has been given the green light, these courts have been hesitant to reward summary judgement in favor of the companies promoting this service.[16] Further, in these cases, companies such as LegalZoom ultimately have settled numerous suits brought against them for various undisclosed amounts.[17]

Technology being introduced into the traditional legal framework does not mean that a lawyer’s work is done. Rather, it means that legal functions may look different in the years to come. It is important for lawyers to be aware of the changes that artificial intelligence is introducing to societal members seeking legal assistance. Understanding the advances that linger in the future is the first step to assuring that you are a lawyer that is aware of change and equipped with the knowledge to stand on a level playing field as new innovations are introduced into the legal market in the years to come.

[1] Julie Sobowale, How Artificial Intelligence is Transforming the Legal Profession, ABA Journal (March 1, 2019), http://www.abajournal.com/magazine/article/how_artificial_intelligence_is_transforming_the_legal_profession.

[2] Id.

[3] Steve Lohr, A.I. Is Doing Legal Work. But It Won’t Replace Lawyers, Yet., The New York Times (March 1, 2019), https://www.nytimes.com/2017/03/19/technology/lawyers-artificial-intelligence.html.

[4] Jesse Emspak, What is Artificial Intelligence?, Live Science (March 1, 2019), https://www.livescience.com/55089-artificial-intelligence.html.

[5] B.J. Copeland, Artificial Intelligence, Encylopedia Britannica (March 1, 2019), https://www.britannica.com/technology/artificial-intelligence.

[6] Lohr, supra note 3.

[7] Id.

[8] Id.

[9] Id.

[10] Jordan Bigda, The Legal Profession: From Humans to Robots, 18 J. High Tech. L. 396, *412 (2018).

[11] Id.

[12] Id.

[13] Id. at *404.

[14] Id.

[15] Janson v. LegalZoom.com, Inc., 802 F. Supp. 2d 1053 (2011); Medlock v. LegalZoom.com, Inc., 2013 S.C. LEXIS 362.

[16] Bigda, supra note 10 at *406-407.

[17] Id.

From 1964 to 1984: Would Overturning a 1964 Case Lead to the Orwellian Predictions of 1984?

This post was written by Associate Editor, Kati Massey.  The views and opinions expressed herein are those of the author alone.

Often, only recent cases for which the Supreme Court grants certiorari receive much attention and analysis from the public. But sometimes, cases which are denied certiorari actually bring to light important Supreme Court cases from the past and demand another look at precedent. This is especially so when such instances provide unique insight necessary to understand the current status and potential outcomes for one of our most treasured freedoms: speech. After all, it is necessary to truly understand our past before we can successfully look to the future.

The Supreme Court recently denied certiorari in McKee v. Cosby.[1] This case was brought by Katherine McKee, an actress who sued Bill Cosby for damaging her reputation after one of Cosby’s lawyers allegedly leaked a letter that attacked McKee.[2] The lower courts ruled against McKee and dismissed the case.[3] These courts based their decisions on McKee’s role as a public figure and cited New York Times v. Sullivan.[4]

When McKee’s attorneys petitioned the Court for certiorari, most of the justices agreed that the law surrounding such cases was sufficiently established and therefore not worthy of one of the few spots available for new cases.[5] Justice Clarence Thomas, however, disagreed to an extent; he believes Sullivan was wrongly decided and should be overturned.[6] Before the implications of such a philosophy become apparent, it is necessary to look back to Sullivan and the precedent that this case set.

The year was 1964.[7] Sullivan, a public official serving as an elected Commissioner in Alabama, brought suit against the New York Times for criticizing his official conduct as supervisor of the Police Department in an advertisement in its daily newspaper.[8] The backdrop of this case, and the relevant advertisement, were cloaked in Civil Rights advocacy.[9] The ad’s pertinent portions reading:

In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.[10]

Although the statement did not mention Sullivan by name, he contended that the word “police” referred to him because of his role as the supervisor of the Police Department.[11] The lower courts found for Sullivan, upholding the notion that the actions of the New York Times were “libelous per se” because some of the statements involved were false (e.g., protestors sang the National Anthem, not My Country, Tis of Thee).[12] Once the case made it up to the Supreme Court, however, the decision was reversed and the “actual malice” requirement for libel cases was born.[13]

The Supreme Court decided that “the constitutional guarantees require…a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”[14] This decision made it more difficult for public officials to win libel cases against the press for criticizing their official conduct in an attempt to safeguard the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[15]

If the Supreme Court does grant certiorari for the next libel case that comes its way, and follows Justice Thomas’s opinion to overturn Sullivan, will the press’s uninhibited ability to include sharp attacks on government and public officials become more akin to the “press” of Orwell’s 1984? Will the threat of constant libel suits lead to a watered-down, government-approved-only press? In Orwell’s dystopian novel, a totalitarian government of the future forbids the press, and individuals, from speaking out against the government, creating a society in which individual thought and “sharp attacks” on government officials—like those the Supreme Court sought to protect in Sullivan—are crimes punishable by jail-time, torture, or death.[16] Sometimes all three.[17] The prohibition of such acts becomes so pervasive that simply thinking about “the Party” negatively is punishable.[18]

The potential here draws forth questions. For example, will the new standard become, “If you hurt the President’s feelings, there will be retribution,” as suggested in President Trump’s recent national address (read: tweet-fest)?[19] After a Saturday Night Live skit parodied President Trump’s National Emergency Address, Mr. Trump set to Twitter, questioning the legality of such “character assassination” colluded by the “fake news” outlet, NBC.[20] Suggesting there should be legal implications for individuals speak out against the President. This is not the first public figure who has been targeted by writers at SNL headquarters, nor is SNL the first satirical show that exaggerates characteristics and personifies public figures.[21] Sullivan protects such parody troupes from constant libel suits brought by the officials involved, but with Justice Thomas’s eyes set on overruling Sullivan, and with President Trump’s recent attacks on the press, the future of Sullivan and what its protections mean for journalists and comedy writers alike should be closely monitored.

[1] McKee v. Cosby, 2019 U.S. LEXIS 827

[2] Mark Sherman, Justice Thomas calls for re-examining landmark libel case, Associated Press (February 19, 2019), https://www.apnews.com/c3ec009d59974c9dad6ba367f58966b5.

[3] McKee v. Cosby, 874F.3d 54, 63-65 (1st Cir. 2017)

[4] Id. at 65.

[5] Sherman, supra note 2.

[6] Id.

[7] New York Times v. Sullivan, 376 U.S. 254 (1964)

[8] Id.at 256.

[9] Id. at 257.

[10] Id.

[11] Id. at 258.

[12] Id. at 263.

[13] Sherman, supra note 2.

[14] See New York Times v. Sullivan, 376 U.S. 254

[15] Id. at 271.

[16] See George Orwell, 1984, Secker & Warburg (1949).

[17] Id.

[18] Id.

[19] Alex Horton, Trump said he found ‘real Collusion’ – on SNL, Washington Post (February 17, 2019), https://www.washingtonpost.com/arts-entertainment/2019/02/17/trump-said-he-found-real-collusion-snl/?noredirect=on&utm_term=.65cf03a38f51.

[20] Id.

[21] Steve Hendrix, SNL has skewered every president since Ford. All of them reacted the same way – until now., Washington Post (December 18, 2018), https://www.washingtonpost.com/history/2018/10/14/snl-has-skewered-every-president-since-ford-all-them-reacted-same-way-until-now/?utm_term=.42547f5f344b.

Killing Auer: The Kisor Campaign

This post was written by Associate Editor, Katherine Montgomery.  The views and opinions expressed herein are those of the author alone.

A spectrum of cases flood the Supreme Court docket, some garnering more attention than others. It’s only natural to be lured by facts involving warrantless blood draws from an unconscious driver or those of an endangered amphibian battling to secure habitat in areas not yet sustainable for its species. [1] But lurking in the shadows of those captivating case captions, lies what is arguably the most important case the Supreme Court will decide in 2019.

On March 27, the Supreme Court will hear oral argument in Kisor v. Wilkie. [2] While the outcome has important implications for Mr. Kisor, the significance lies in its attack on the administrative state. The case arises from a dispute over retroactive benefits for James Kisor, a Marine who served in the Vietnam War, suffering from service-related post-traumatic stress disorder. [3] At issue were Kisor’s service personnel records and whether the records were “relevant” within the meaning of the regulation in determining benefit eligibility. [4] Ultimately, the Board of Veterans Appeals denied retroactive benefits relying on the agency’s interpretation of the term ‘relevant’ in its own regulation. [5] Kisor then appealed unsuccessfully to the U.S. Court of Appeals for the Federal Circuit which affirmed the Board’s decision. [6]

The court of appeals concluded the term ‘relevant’ was ambiguous when it acknowledged that both Kisor and the Board argued reasonable definitions, but deferred to the Board’s interpretation as controlling. [7] Citing both Seminole Rock and Auer for support, the court explained that it “defer[s] to an agency’s interpretation of its own regulation” unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” [8]

The Supreme Court granted certiorari in Kisor to reconsider the risk inherent in Seminole Rock-Auer deference (commonly referred to as “Auer deference”) – a decision that could overturn unwieldly control of the administrative state.

Born out of the 1945 decision in Bowles v. Seminole Rock & Sand Co., the mechanism by which administrative agencies circumvent limits imposed on agency authority gained serious traction in the 1997 decision, Auer v. Robbins. [9] In a unanimous opinion authored by Justice Scalia, Auer demonstrated an open willingness to defer to an agency’s interpretation unless plainly erroneous or inconsistent with the regulation. [10] It wasn’t until 2011 when Justice Scalia in Talk America v. Michigan Bell Telephone Co. would later call this broad application of the Seminole Rock doctrine, a regret in that he “uncritically accepted.” [11]

In many ways, it can be argued that doctrines of administrative deference are practical (and perhaps required) to the function of the federal government’s ability to regulate big businesses, the environment, and immigration. [12] Under the Chevron doctrine, the agency with the requisite expertise is often considered in a better position to interpret the federal law it administers when the law itself is not clear. [13] In this instance, Congress may delegate the task of filling a gap in the statute to the expertise of the agency through the formal rulemaking process, compatible with Section 706 of the Administrative Procedure Act (APA). [14] Whereas, Auer deference provides for the agency (not Congress) to draft broad or vague substantive rules that the agency later fills in using interpretive rules unchecked by notice and comment. [15]

Auer grants agencies authority to bypass APA safeguards enacted by Congress to protect the public from irregular agency lawmaking. [16] These measures include notice and comment rulemaking; requiring notice, public participation, and agency accountability. [17] Auer deference unilaterally enables agencies to adopt binding interpretations without providing the regulated community notice of what is required. [18] That is, until the very same regulated community becomes blindsided by ad hoc agency interpretations or rationalizations of its very own vague regulations.

In SmithKline Beecham Corp., the Court recognized that Auer “creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby frustrating the notice and predictability purposes of rulemaking.” [19] Justice Thomas previously explained, “[i]t is perfectly understandable * * * for an agency to issue vague regulations, because to do so maximizes agency power and allows the agency greater latitude to make law through adjudication rather than through the more cumbersome rulemaking process.” [20]

Prior to his passing in February 2016, Justice Scalia offered a solution to the exploitation of Auer that would “restore the balance originally struck by the APA with respect to the agency’s interpretation of its own regulations.” [21] In his view, the solution would be to overrule Seminole Rock – a doctrine relied upon even though it was decided before the APA was enacted. [22] Built upon the doctrine of Seminole Rock, the tremendous impact of Auer and it’s authority to bypass the APA results in a direct conflict with the separation of powers – a principle necessary to protect individual liberty. “Because Auer’s practical effect is to vest in a single branch the law-making and law-interpreting functions, Auer is incompatible with the separation-of-powers principles that animate the Constitution.” [23]

In Decker, Justice Scalia concludes that “however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.” [24] Kisor could very well be the decision in restoring the balance Justice Scalia had hoped for.

[1] Mitchell v. Wisconsin, No.18-6210, 2019 U.S. LEXIS 576 (U.S., Jan. 11, 2019) (set for argument Apr. 23, 2019); Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018).

[2] Kisor v. Wilkie, No. 18-15, 139 S. Ct. 657 (Dec. 10, 2018) (certiorari granted, in part).

[3] Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir., Sept. 7, 2017).

[4] Brief for Petitioner at *34-36, Kisor v. Wilke, No. 18-15 (U.S., Jan. 24, 2019); The Dept. of Veterans Affairs’ New & Material Evidence regulation, 38 C.F.R. § 3.156(c).

[5] Brief for Petitioner, supra note 4, at *30-36.

[6] Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir., Sept. 7, 2017).

[7] Id. at 1367-68.

[8] Id. at 1367 (internal quotation marks omitted), (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), Auer v. Robbins, 519 U.S. 452 (1997)).

[9] Brief for Petitioner, supra note 4, at *12-14; Auer v. Robbins, 519 U.S. 452 (1997).

[10] Kevin O. Leske, A Rock Unturned: Justice Scalia’s (Unfinished) Crusade against the Seminole Rock Deference Doctrine, 69 Admin. L. Rev. 1, *20 (Winter 2017).

[11] Id. at *22; Talk America, Inc. v. Michigan Bell Tel. Co., 564 U.S. 50, 67-68 (2011) (Scalia, J., concurring).

[12] Brianne Gorod, Symposium: Why Kisor is a case to watch, Scotusblog (Jan. 31, 2019, 11:14 AM), https://www.scotusblog.com/2019/01/symposium-why-kisor-is-a-case-to-watch/

[13] Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

[14] Administrative Procedure Act, 5 U.S.C. § 706.

[15] Brief for Petitioner, supra note 4, at *62; Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1212 (Scalia, J., concurring in the judgment).

[16] Brief for Petitioner, supra note 4, at *52.

[17] Id. at *38-39, 48-49.

[18] Jonathan Adler, Symposium: Government agencies shouldn’t get to put a thumb on the scales, Scotusblog (Jan. 31, 2019, 2:36 PM), https://www.scotusblog.com/2019/01/symposium-government-agencies-shouldnt-get-to-put-a-thumb-on-the-scales/

[19] Brief for Petitioner, supra note 4, at *61-62 (citing Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 158 (2012) (quoting Talk Am., Inc., 564 U.S. 50, 69 (2011) (Scalia, J., concurring)).

[20] Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting).

[21] Perez, 135 S. Ct. at 1213; see also Leske, supra note 10, at *31.

[22] Id. at 1211, 1213; see also Leske, supra note 10, at *31.

[23] Talk America, Inc., 564 U.S. at 68 (2011) (Scalia, J., concurring).

[24] Decker v. Northwest Envtl. Def. Ctr., 568 U.S. 597, 622 (2013) (Scalia, J., concurring in part and dissenting in part).

Ante Up: Taking A Gamble On Double Jeopardy

This post was written by Associate Editor, Lauren Lentsch.  The views and opinions expressed herein are those of the author alone.

One would imagine that a judicial doctrine upheld and relied on for 170 years and approved by 30 Supreme Court justices could be considered firmly established law. However, such is not necessarily the case with the “separate sovereign” exception to the Double Jeopardy Clause. The Supreme Court is expected to soon issue their decision in the case Gamble v. United States, challenging the separate sovereign doctrine as a violation of the Fifth Amendment Double Jeopardy Clause.

The separate sovereign exception to the Double Jeopardy Clause was established from a litany of Supreme Court cases. In Abbate v. United States, the defendant was convicted in Illinois for conspiracy to damage another’s property and sentenced to three months imprisonment.[1] The defendant was subsequently charged in federal court for violation of 18 U.S.C. § 1362 (1964), conspiracy to destroy communications facilities operated or controlled by the United States.[2] In Bartkus v. Illinois, the defendant was convicted of armed robbery under Illinois law after acquittal from a federal charge under 18 U.S.C. §2113 (1964).[3] These cases, followed by a myriad of others, have upheld United States v. Lanza, which provided the following:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.[4]

Such has been the prevailing separate sovereign doctrine, unfailingly upheld in the courts.

Gamble v. United States probes the Supreme Court on whether it should overrule the separate sovereign exception to the Double Jeopardy Clause. On November 29, 2015, Terance Martez Gamble was pulled over by police for a faulty headlight.[5] The officer smelled marijuana, and after searching the car, found marijuana, a digital scale, and a 9mm handgun.[6] Because Madison was convicted of a felony in 2008, he was in violation of the State’s felon-in-possession statute, which prohibited “a convicted felon from possessing a pistol.”[7] During the pendency of the State’s criminal proceedings, Gamble was also charged by the federal government under violation of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1).[8] Gamble’s sole objection remains that the Fifth Amendment’s Double Jeopardy Clause prohibits the federal indictment, as the charges were brought from the same offence.[9] Bound by strong precedent, the District Court and the Eleventh Circuit denied Gamble’s motion.[10]

Gamble has now appealed to the Supreme Court on the back of the June 9, 2015 Supreme Court decision in Puerto Rico v. Sanchez Valle.[11] In Puerto Rico, the Court ruled that states are separate sovereigns from the United States federal government as their power to undertake criminal prosecutions is not derived from the federal government, but instead relies upon authority preserved to them by the Tenth Amendment.[12] However, the Court held that Puerto Rico is a territory, not a state, and derives its power from the federal government.[13] As such, the claim brought by both the federal government and Puerto Rico was a violation of the Fifth Amendment Double Jeopardy Clause.[14]

Despite this most recent decision, the stark differences between United States territories and states, and the long-held precedent of the separate sovereign doctrine are undeniable. There is no doubt that Gamble faces an uphill battle. However, there is scholarly chatter that he has made strange bedfellows with, at minimum, three votes with Justice Thomas, Justice Ginsburg, and Justice Gorsuch. The questions posed at argument, along with the concurrence in Puerto Rico, lend credence to the thought that these justices believe that the principles of federalism and the original meaning of the Double Jeopardy Clause limit government intrusion into people’s lives, not increase it and that they will vote to overturn Abbate. While it will be a challenge to persuade at least two more justices, his pursuit is certainly not unreasonable. Of course, should Gamble be successful, the opinion would be historic, overturning a 170-year-old doctrine that has been approved by 30 Supreme Court Justices.

Oral arguments were heard on December 6, 2018 and the Court is set to decide the issue before this term’s end.

[1] Abbate v. United States, 359 U.S. 187, 188 (1959).

[2] Id. at 188.

[3] Bartkus v. Illinois, 359 U.S. 121 (1959).

[4] United States v. Lanza, 260 U.S. 377, 382 (1922).

[5] Petition for a Writ of Certiorari at 3, Gamble v. United States, No. 17-646 (U.S. October 24, 2017).

[6] Id.

[7] Id.; See Ala. Code §§ 13A-11-70(2), 13A-11-72(a).

[8] Petition for a Writ of Certiorari at 4, Gamble v. United States, No. 17-646 (U.S. October 24, 2017).

[9] Id.

[10] See United States v. Gamble, No. 16-00090-KD-B, 2016 U.S. Dist. LEXIS 80201 (S.D. Ala. June 20, 2016); United States v. Gamble, 694 F. App’x 750 (11th Cir. 2017).

[11] United States v. Sanchez Valle, 136 S.Ct. 1863 (2016).

[12] Id. at 1871.

[13] Id. at 1873.

[14] Id. at 1877.

The Taxman Cometh: Conveyance Language and its Secondary Tax Implications in the Event of Involuntary Conversion

This post was written by Associate Editor, Rebecca McDonough.  The views and opinions expressed herein are those of the author alone.

The Fifth Amendment provides property owners with the guarantee of just compensation when private property is taken for public use by a government entity.[1] While legal scholars have debated the definitions of “just compensation” and “public use,” the language included in condemnation conveyance documents and secondary tax implications of such language have yet to be explored.[2] The Internal Revenue Code specifically provides a taxpayer with the means of deferring his gain “where he is compelled to give up such property because of circumstances beyond his control.”[3]

Beyond the reporting requirements, additional language in applicable conveyance documents, such as purchase agreements or deeds, could be employed as evidentiary support for a taxpayer’s claim of involuntary conversion and nonrecognizable or deferred gain. Specifically, conveyance documents including the phrase “conveyed under threat of eminent domain” or “conveyed in lieu of eminent domain proceedings” could be the new normal in federal, state or municipal property acquisitions.

As a general rule, property involuntarily converted into money, through the receipt of a condemnation award, can be deferred for tax reporting purposes if the taxpayer purchases “property similar or related in service” to the converted property within two years of the date of involuntary conversion.[4] The condemnation award must be reinvested in replacement property.[5] If the award is not reinvested, it is a taxable gain and must be reported as such by the taxpayer.[6]

A threat of condemnation exists “if the taxpayer might reasonably believe from representations of government agents and from surrounding circumstances that condemnation [is] likely to take place if he [does] not sell his property.”[7] The Internal Revenue Service provides that any oral statements upon which the taxpayer relied may have to be supported by written confirmation to satisfy the requirements for elected deferral.[8] Individual states have their own requirements for how governmental entities and agencies must go about acquiring private property.[9] In Ohio, for example, the triggering event for a threat of condemnation occurs when the taxpayer receives written notice of the government’s intent to acquire his property.[10]

The standard form of notice of intent to acquire under the Ohio Revised Code includes a section which provides, “[i]f you do not accept this offer, and we cannot come to an agreement on the acquisition of (your property) (an easement), ________________ (agency) has the right to file suit to acquire the (property) (easement) by eminent domain in the county in which the property is located.”[11] Upon receipt of such notice, a taxpayer could reasonably interpret this language to indicate that the property would be acquired through the government entity’s eminent domain or condemnation power if the taxpayer does not voluntarily convey it.

Manatee County, Florida is the only jurisdiction which uses specific eminent domain language in property conveyance documents.[12] The inclusion of “under threat of and in lieu of eminent domain proceedings” language is not for tax purposes, but to exempt the documents from county recording fees.[13] Expanding the application of this language beyond Manatee County and across other jurisdictions will provide additional evidentiary support to individuals seeking to invoke their deferral right under I.R.C. § 1033.

To qualify for a deferral, the taxpayer must reinvest the condemnation award in similar property within two years and he must include notice of his election to defer with his tax return for the year in which the involuntary conversion occurred.[14] However, when reporting his election to defer the taxpayer is only required to include “all necessary details.”[15] Having satisfied the statutory and jurisdictional requirements to exercise its eminent domain power, the governmental entity benefits from the acquisition of the taxpayer’s property. In turn, the inclusion of eminent domain language in the conveyance documents benefits the taxpayer should he wish to reinvest the condemnation award and defer the gain. Considering the ambiguity of “all necessary details,” adding “conveyed under threat of eminent domain” or “conveyed in lieu of eminent domain proceedings” provides the taxpayer with supplementary evidentiary support should any issues arise regarding his elected deferral.

 

[1] U.S. Const. amend. V.

[2] See Patricia E. Salkin & Lora A. Lucero, Community Redevelopment, Public Use, and Eminent Domain, 37 Urb. Law. 201 (2005); Steve P. Calandrillo, Eminent Domain Economics: Should “Just Compensation” Be Abolished, and Would “Takings Insurance” Work Instead, 64 Ohio St. L.J. 451 (2003).

[3] S & B Realty Co. v. Comm’r of Internal Revenue, 54 T.C. 893, 871 (1970).

[4] I.R.C. § 1033(a) (LexisNexis 2019).

[5] I.R.C § 1033(b) (LexisNexis 2019).

[6] Mark W. Cochran, Should Personal Injury Damage Awards Be Taxed?, 38 Case W. Res. 43, 47 (1988).

[7] Ranier Cos., Inc. v. Comm’r of Internal Revenue, 61 T.C. 68, 76 (1973).

[8] Internal Revenue Serv., Dep’t of the Treasury, Pub. 544, Sales and Other Dispositions of Assets 6 (Mar. 13, 2018), https://www.irs.gov/pub/irs-pdf/p544.pdf.

[9] See Fifty-State Survey: The Law of Eminent Domain (William G. Blake ed., 2012).

[10] Ohio Rev. Code Ann. § 163.04(A) (LexisNexis 2019).

[11] Ohio Rev. Code Ann. § 163.041 (Lexis Nexis 2019).

[12] Joaquin Servia, Manatee Cty. Prop. Mgmt. Dep’t, Contract for Sale and Purchase for Permanent Easement (2013), https://www.mymanatee.org/published/August%2013,%202013%20-%20Regular%20Meeting%20on%20Tuesday,%20August%2013,%202013/634F0054-633A-4A5F-8031-B430A631D6C5.pdf.

[13] Manatee Cty. Prop. Mgmt. Dep’t, Permanent Utilities Easement (2013). https://www.mymanatee.org/UserFiles/Servers/Server_7588306/File/Departments/Building%20&%20Development%20Services/Planning%20&%20Development/Applications%20Forms%20Fees/Subdiv/Drainage_Utilites%20Easement_RepCapacity_Rev_8_02_13_CAO-803.2.%20%20rev.pdf.

[14] Internal Revenue Serv., Dep’t of the Treasury, Pub. 544, at 10.

[15] Id.