Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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McClain v. Hanna

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1726

Opinion Date: February 5, 2020

Judge: Thapar

Areas of Law: Civil Procedure, Class Action

McClain sued Hanna and Hanna’s two law firms under the Fair Debt Collection Practices Act, 15 U.S.C. 1692, and an analogous Michigan statute, Mich. Comp. Laws 445.251, asserting both individual and class claims. Within a week, Hanna offered McClain a settlement under Federal Rule of Civil Procedure 68. That settlement allowed judgment to be entered in McClain’s favor “as to all counts” of his complaint and gave McClain his full damages (both actual and statutory) plus his litigation costs and reasonable attorney’s fees. Four days later, McClain accepted the settlement offer but simultaneously filed a “placeholder” motion for class certification, apparently to preempt a mootness ruling. Even so, the district court found the class claims to be moot and dismissed both the individual and class claims. McClain noted that the settlement called for judgment in his favor; the court entered an amended judgment “for Plaintiff Theodore McClain as to all counts in Plaintiff’s complaint[.]” The Sixth Circuit affirmed, declining to address mootness because the judgment did not declare any of the claims moot. Parties may not challenge a judgment to which they have consented. McClain waived his right to pursue the class claims.

The Bank of New York Mellon v. Ackerman

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-4066

Opinion Date: February 6, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

More than a decade ago, the Bank began foreclosure proceedings against the Ackermans. In 2010, an Ohio court entered judgment in the Bank’s favor. The Ackermans have sought to thwart the foreclosure sale. They tried to remove their case to federal court. The district court concluded that it lacked jurisdiction and remanded their case to state court. The Sixth Circuit dismissed the Ackermans' appeal for lack of jurisdiction, 28 U.S.C. 1447(d); Later, the Ackermans moved the district court to reconsider its remand order. The district court denied their motion, reasoning that it lacked jurisdiction to reconsider its order. The Sixth Circuit again dismissed an appeal for lack of jurisdiction. The court cited multiple cases that have construed section 1447(d) as precluding further reconsideration or review of a district court’s order remanding a case back to state court because a remand divests the district court of any further jurisdiction over the case. To review an order denying a motion to reconsider a remand order would “circumvent the jurisdiction-stripping function of section 1447(d).”

Lowrey v. Tilden

Court: US Court of Appeals for the Seventh Circuit

Dockets: 19-1365, 19-3145

Opinion Date: February 3, 2020

Judge: Diane Pamela Wood

Areas of Law: Civil Procedure

In consolidated appeals, the Seventh Circuit gave the appellants seven days to file amended jurisdictional statements. The court acknowledged its “reputation as a jurisdictional hawk.” In each of the cases, a magistrate judge issued the final judgment from which the appeal has been taken. Circuit Rule 28(a)(2)(v) requires an appellant in such a case to include in its jurisdictional statement information about the magistrate judge’s involvement and also “the dates on which each party consented in writing to the entry of final judgment by the magistrate judge.” The court cited Circuit Rule 28(a)(2)(v), and the Seventh Circuit Practitioner’s Handbook for Appeals (2019 ed.), which explicitly refers to the failure to provide dates of consent to proceed before a magistrate judge as one of the recurring problems that the court encounters when performing jurisdictional screening.

United States v. Bala

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-2849

Opinion Date: February 4, 2020

Judge: James B. Loken

Areas of Law: Civil Procedure

The Eighth Circuit affirmed the district court's denial of a successive petition for a certificate of innocence, holding that the petition was barred by the doctrine of res judicata and that the district court did not err in finding that defendant's petition was barred. In a previous case, the court reversed federal gambling and money laundering convictions of RSI and its president, defendant, because the government failed to prove any of the offenses charged. RSI and defendant then petitioned for a certificate of innocence, the statutory prerequisite to an action in the Court of Federal Claims seeking damages from the government for wrongful imprisonment. The court affirmed the denial of the district court's petition, because RSI and defendant were not truly innocent of a state criminal gaming law violation.

Ezell v. BNSF Railway Company

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-6018

Opinion Date: February 5, 2020

Judge: Gregory Alan Phillips

Areas of Law: Civil Procedure, Personal Injury, Transportation Law

Petitioner George Ezell was a conductor for BNSF Railway Company. In 2014, the trainmaster directed Ezell to detach twenty ballast-loaded railcars from a train about to enter the Enid, Oklahoma train yard. To detach, Ezell had to climb railcar ladders to see which cars were more than half full of ballast. Ezell safely performed this method for five or six railcars, but while inspecting the next railcar, his left hand slipped from the flange after he had let go of the ladder rung with his right hand. He was unable to resecure a grip with either hand and fell several feet to the ground, fracturing his right leg, right ankle, and left foot. He sued BNSF under the Federal Employers Liability Act (FELA) for failing to provide him with a reasonably safe place to work. BNSF moved for summary judgment, arguing that its railcar complied with the governing safety regulations and that Ezell had offered no evidence of BNSF’s negligence. “Ezell’s proffering what he believes are safer alternatives does not show negligence.” The Tenth Circuit Court of Appeals determined the evidence established that to do their jobs railroad conductors need to climb the ladders, and that this was a reasonably safe activity. For that reason, the Court agreed with the district court’s dismissal of this case.

Ex parte Allstate Property & Casualty Insurance Company.

Court: Supreme Court of Alabama

Docket: 1180871

Opinion Date: January 31, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Insurance Law

Allstate Property and Casualty Insurance Company ("Allstate") petitioned the Alabama Supreme Court for a writ of mandamus to direct the Macon Circuit Court to grant Allstate’s request for a jury trial in a pending action there. In August 2013, a vehicle occupied by Danielle Carter was involved in an accident with a vehicle being driven by Alvin Lee Walker. Carter sued Walker, alleging negligence and wantonness in the operation of his vehicle. In the same action, Carter also sued her underinsured-motorist carrier, Allstate, seeking underinsured-motorist benefits. In her complaint, Carter demanded a jury trial. Likewise, Allstate demanded a jury in its answer to the complaint. Pursuant to Lowe v. Nationwide Insurance Co., 521 So. 2d 1309 (Ala. 1988), Allstate opted out of active participation in the litigation. Opting out under Lowe keeps the jury in a vehicle-accident action from learning that insurance coverage might be available to pay damages. As the trial date approached, Carter and Walker decided that they would rather try the case without a jury. Allstate, however, demanded a jury trial. The trial court denied Allstate's demand and set the case for a nonjury trial. The Supreme Court determined that Lowe demonstrated there was a strong policy in Alabama against tainting a jury with knowledge of the possible availability of insurance to cover a party's damages. “There is also a strong policy of preserving the right to have a jury determine the extent of a party's liability.” Accordingly, the Court held Allstate could insist that a jury determine liability and damages and, at the same time, keep its involvement from the jury pursuant to the opt-out procedure adopted in Lowe.

Ex parte State Farm Fire & Casualty Company.

Court: Supreme Court of Alabama

Docket: 1170760

Opinion Date: January 31, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Insurance Law

State Farm Fire and Casualty Company ("State Farm"), a defendant below, petitioned the Alabama Supreme Court for a writ of mandamus to challenge Clarke Circuit Court's failure to dismiss the underlying action or to enter a judgment in its favor on the claims of the plaintiffs, Samuel Boykin, Lucretia Boykin, Reginald Berry, and Ida Berry (collectively referred to as "the respondents"). Specifically, State Farm contended respondents' claims were barred by section 27-23-2, Ala. Code 1975 ("the direct-action statute). In denying the writ, the Supreme Court found it “never recognized an exception to the general rule that would permit interlocutory review of a trial court's denial of a motion to dismiss or for a judgment on the pleadings for cases that turn on whether the plaintiff has stated a cognizable claim under the applicable law. We will not make an exception here. Accordingly, the petition is denied.”

McClurg v. Birmingham Realty Company

Court: Supreme Court of Alabama

Docket: 1180635

Opinion Date: January 31, 2020

Judge: Tom Parker

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

Rose McClurg sued Birmingham Realty Company ("BRC") based on injuries she sustained when she fell in the parking lot of a shopping center owned by BRC. The circuit court entered a summary judgment in favor of BRC, and McClurg appealed. Because there was a genuine issue of material fact as to whether the hole in which McClurg stepped was an open and obvious danger, the Alabama Supreme Court reversed summary judgement.

Ackerschott v. Mtn View Hospital; Redicare

Court: Idaho Supreme Court - Civil

Docket: 46205

Opinion Date: February 6, 2020

Judge: Bevan

Areas of Law: Civil Procedure, Health Law, Medical Malpractice

Shane and Rebecca Ackerschott sued Mountain View Hospital, LLC, doing business as Redicare (“Redicare”), after Shane sustained an injury leading to paraplegia. A jury found Redicare’s treatment of Shane breached the standard of care and awarded the Ackerschotts $7,958,113.67 in total damages. After judgment was entered, Redicare filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial. The Ackerschotts also moved to alter or amend the judgment. All post-trial motions were denied. Redicare appealed, arguing the district court erred by not submitting an instruction on comparative negligence to the jury and by allowing testimony of the Ackerschotts’ expert witness. The Ackerschotts cross-appealed, arguing the cap on noneconomic damages imposed by Idaho Code section 6-1603 was unconstitutional. After review, the Idaho Supreme Court affirmed as to Redicare’s direct appeal, and declined to reach the merits of the Ackerschotts’ constitutional claim on cross-appeal.

Brauner v. AHC of Boise

Court: Idaho Supreme Court - Civil

Docket: 45980

Opinion Date: February 4, 2020

Judge: Stegner

Areas of Law: Civil Procedure, Medical Malpractice

At issue before the Idaho Supreme Court in this case was a suit for medical malpractice brought by Leila Brauner against AHC of Boise, dba Aspen Transitional Rehab (Aspen). The claim arose out of Aspen’s delay in sending Brauner to the hospital following her knee replacement surgery, which was a substantial factor resulting in the amputation of Brauner’s right leg at the mid-thigh. After a trial, the jury entered a verdict in favor of Brauner and awarded her $2,265,204 in damages. Aspen appealed, alleging that various pre-trial and post-trial rulings were made in error and resulted in an unsustainable judgment. After review, the Supreme Court found no reversible error, and affirmed.

Primera Beef v. Ward

Court: Idaho Supreme Court - Civil

Docket: 46595

Opinion Date: February 3, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Contracts, Labor & Employment Law, Legal Ethics

Primera Beef, LLC appealed a district court’s grant of summary judgment in favor of Allan Ward. Primera Beef alleged Ward breached the confidentiality provision of a settlement agreement between him and Primera Beef when Ward’s attorney disclosed the terms of the agreement to a prosecutor in a related criminal action. Ward moved for summary judgment, arguing that he was not liable for his attorney’s actions because his attorney was not acting within the scope of his authority when he disclosed the terms. The district court agreed. The Idaho Supreme Court concurred and affirmed the district court.

Texas Brine Co., LLC v. Naquin

Court: Louisiana Supreme Court

Dockets: 2019-OC-01503, NO. 2019-OC-1508

Opinion Date: January 31, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Government & Administrative Law, Legal Ethics

In consolidated actions, the common issue presented for the Louisiana Supreme Court’s review centered on whether a writ of mandamus should issue to the clerk of an appellate court for the purpose of directing the clerk to comply with certain rules for the random assignment of panels and cases at that court. In a three-page per curiam, the First Circuit explained its allotment procedures were changed in 2019 after the 2018 amendment to La. R.S. 13:319. The First Circuit stated it adopted rules requiring a procedure for random allotment by the Clerk’s office of both appeals (Internal Rule 2.3(d)(l)(c)) and writ applications (Internal Rules 3.9(a)),4 with consideration for recusals and emergencies. In a supplemental per curiam, the First Circuit discussed composition of judicial panels, each regular panel comprising of one member randomly chosen through mechanical means from the four members of each of the Court's three election districts. The random composition of the initial three-judge panels was adopted pursuant to a five-year plan of rotation of members among the panels. To further ensure random composition of the panels, panel members of particular panels did not sit as an intact panel in the following year. The four randomly drawn regular panels also sat on writ duty throughout the Court's six appeal cycles. Petitioner Texas Brine’s petition alleged the First Circuit’s composition of judicial panels “dramatically limits the number of unique panels that can hear writs, appeals, and contested motions before the First Circuit from 220 unique combinations to 64 unique combinations - a reduction of approximately 70.9%.” It concluded this policy was an “affront to the requirement of randomness.” The Solomon plaintiffs’ mandamus petition was premised on the First Circuit’s practice, used between 2006-2018, of assigning subsequent appeals or applications for writs to a panel which included a judge who sat on the original panel and may have taken the lead or authored the first opinion/ruling in the case. The Supreme Court determined the First Circuit’s assignment system was reasonably designed “to select judges for panels in a random fashion which does not permit intentional manipulation by either the judges or the litigants.” The Court therefore denied Texas Brine’s mandamus petition, and dismissed the Solomon plaintiffs’ application as moot.

Estate of Mary Van Riper v. Director, Division of Taxation

Court: Supreme Court of New Jersey

Docket: a-51-18

Opinion Date: February 5, 2020

Judge: Solomon

Areas of Law: Civil Procedure, Government & Administrative Law, Tax Law, Trusts & Estates

Walter and Mary Van Riper transferred ownership of their marital home to a single irrevocable trust. Walter passed away shortly after transfer of the property to the trust. Six years later, after Mary passed away, the trustee distributed the property to the couple’s niece. In this appeal, the issue presented for the New Jersey Supreme Court was whether the New Jersey Division of Taxation (Division) properly taxed the full value of the home at the time of Mary’s death. Walter and Mary directed that, if sold, all proceeds from the sale of their residence would be held in trust for their benefit and would be utilized to provide housing and shelter during their lives. Walter died nineteen days after the creation of the Trust. Mary died six years later, still living in the marital residence. Mary’s inheritance tax return reported one-half of the date-of-death value of the marital residence as taxable. However, the Division conducted an audit and imposed a transfer inheritance tax assessment based upon the entire value of the residence at the time of Mary’s death. Mary’s estate paid the tax assessed but filed an administrative protest challenging the transfer inheritance tax assessment. The Division issued its final determination that the full fair market value of the marital residence held by the Trust should be included in Mary’s taxable estate for transfer inheritance tax purposes. The Appellate Division affirmed the Tax Court’s conclusion, rejecting the estate’s argument that transfer inheritance tax should only be assessed on Mary’s undivided one-half interest in the residence. The Supreme Court agreed with both the Tax Court and the Appellate Division that the Division properly taxed the entirety of the residence when both life interests were extinguished, and the remainder was transferred to Marita. The property’s transfer, in its entirety, took place “at or after” Mary’s death, and was appropriately taxed at its full value at that time. “In light of the estate-planning mechanism used here, any other holding would introduce an intolerable measure of speculation and uncertainty in an area of law in which clarity, simplicity, and ease of implementation are paramount.”

State ex rel. Ames v. Summit County Court of Common Pleas

Court: Supreme Court of Ohio

Citation: 2020-Ohio-354

Opinion Date: February 6, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

The Supreme Court dismissed this appeal from the court of appeals' dismissal of Appellant's petition for a writ of prohibition against Summit County Court of Common Pleas and Judge Mary Margaret Rowlands, holding that this cause was moot. National Collegiate Student Loan Trust 2007-2 filed a civil action against Appellant in the court of common pleas. Judge Rowlands demised the case without prejudice and then reinstated the case after considering National Collegiate's motion for relief from judgment. Petitioner filed a petition for a writ of prohibition alleging that Judge Rowland lacked jurisdiction to issue the order reinstating the case. The court of appeals dismissed the petition for failure to state a claim. Appellant appealed. Judge Rowlands claimed that the appeal was moot because, during the pendency of the appeal, she dismissed National Collegiate's case a second time. The Supreme Court dismissed the appeal, holding that the cause was moot and that no exception to the mootness doctrine applied.

State ex rel. McDougald v. Greene

Court: Supreme Court of Ohio

Citation: 2020-Ohio-287

Opinion Date: January 31, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

The Supreme Court found Larry Greene in contempt for failing to provide records under the terms of an existing peremptory writ of mandamus and imposed a sanction of $1,000, holding that Greene failed to meet his obligations under both Ohio's Public Records Act and the peremptory writ of mandamus issued by this Court. When Jerone McDougald was an inmate at the Southern Ohio Correctional Facility (SOCF) he sent a public records request to Greene, SOCF's public records custodian. When Greene did not provide copies of the requested document McDougald filed an action for a writ of mandamus. The Supreme Court granted a peremptory writ. Later, the McDougald filed a motion asking that Greene be held in contempt for court for withholding the requested document. The Supreme Court held that Greene failed to meet his obligations, found him in contempt of court, and imposed a sanction, which the Court stayed to allow Greene the opportunity to purge the contempt in a manner outlined by the Court.

K&W Automotive, LLC v. Town of Barrington

Court: Rhode Island Supreme Court

Docket: 18-250

Opinion Date: January 31, 2020

Judge: William P. Robinson, III

Areas of Law: Civil Procedure, Government & Administrative Law

The Supreme Court affirmed the judgment of the superior court granting Plaintiffs' request for declaratory and injunctive relief and ruling that the Town of Barrington lacked authority under its Home Rule Charter to enact an ordinance banning the sale of flavored tobacco products and prohibiting the providing of any tobacco products to persons under the age of twenty-one (the Tobacco Ordinance), holding that the Town lacked the authority to enact the Tobacco Ordinance. Specifically, the Court held that, while the Tobacco Ordinance was enacted to protect public health and safety, the ordinance constituted legislation concerning a matter of statewide concern, and therefore, it fringed upon the power of the state. Further, because the Town lacked the authority under its Home Rule Charter to enact the ordinance, the hearing justice did not err in declining to decide whether the ordinance was preempted by state law.

In re Fox River Real Estate Holdings, Inc.

Court: Supreme Court of Texas

Docket: 18-0913

Opinion Date: January 31, 2020

Judge: Eva Guzman

Areas of Law: Business Law, Civil Procedure, Contracts

In this venue dispute, the Supreme Court denied a petition for mandamus relief, holding that the trial court did not abuse its discretion in transferring the case to the parties' agreed venue. This case stemmed from a lawsuit alleging wrongful disposition of a limited partnership's assets. A group of the limited partners (collectively, Fox River) sued William Carlson, who owned and controlled the partnership's general partner, claiming that Carlson fraudulently misappropriated groundwater leases, breached the limited partnership agreement, and violated fiduciary duties. Fox River filed the lawsuit in Washington County where Carlson was domiciled. Carlson moved to transfer venue to Harris County, citing a venue-selection clause in the limited partnership agreement. The trial court granted the motion, enforcing the parties' venue agreement in accordance with Tex. Civ. Prac. & Rem. Code 15.020. Fox River sought mandamus relief, arguing that Tex. Civ. Prac. & Rem. Code 65.023(a) mandates venue in a defendant's county of domicile for cases primarily seeking injunctive relief. The Supreme Court denied mandamus relief, holding that section 15.020 requires enforcement of the parties' venue-selection agreement not because it is a "super mandatory" venue provision that supersedes section 65.023(a) but because section 65.023(a) does not apply in suits like this where injunctive relief is not the primary and principal relief requested.