Double Jeopardy: Answers to Six Questions About Donald Trump’s Second Impeachment Trial

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, addresses six key questions about Donald Trump’s second impeachment trial. Falvy provides clear and supported answers to frequently asked questions such as whether the Senate can act to remove Trump from the presidency, whether it can hold a trial after his term expires, who should preside, and whether he will lose his presidential perks.

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Big Tyme Investments, L.L.C. v. Edwards

Court: US Court of Appeals for the Fifth Circuit

Dockets: 20-30526, 20-30537

Opinion Date: January 13, 2021

Judge: Stephen Andrew Higginson

Areas of Law: Business Law, Civil Procedure, Constitutional Law

Louisiana bar owners challenged the Governor’s restrictions to the operation of bars in response to COVID-19. The Bar Closure Order prohibited on-site consumption of alcohol and food at “bars,” but permitted on-site consumption of alcohol and food at “restaurants.” Two district courts denied the bar owners’ motions for preliminary injunctive relief. The Fifth Circuit affirmed, rejecting an argument under the Equal Protection Clause of the Fourteenth Amendment. The court applied “rational basis” review. The classification at issue is based on a business permit, and does not differentiate on the basis of a suspect class. The Bar Closure Order’s differential treatment of bars operating with AG permits is at least rationally related to reducing the spread of COVID-19 in higher-risk environments. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.

Shah v. VHS San Antonio Partners, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-50394

Opinion Date: January 13, 2021

Judge: Priscilla R. Owen

Areas of Law: Antitrust & Trade Regulation, Business Law, Health Law

Shah, a board-certified pediatric anesthesiology specialist, joined STAR, which became the exclusive provider of anesthesia services at several San Antonio-area acute-care hospitals, including NCB. BHS guaranteed STAR $500,000 in collections for pediatric anesthesia services provided at NCB. In 2012, STAR became the exclusive provider of anesthesia services at four BHS hospitals. Shah was not a party to the 2012 agreement, nor was he named in the pediatric income guarantee but he continued to practice as a STAR pediatric anesthesiologist, becoming the primary beneficiary of STAR’s guaranteed collections. In 2016, STAR and BHS amended the 2012 agreement, eliminating the pediatric income guarantee. The exclusivity provision remained. STAR terminated its relationship with Shah. Shah could no longer provide pediatric anesthesia services at NCB or any other BHS facility included in the exclusivity agreement. Shah requested authorization to provide pediatric anesthesia care at NCB; BHS responded that Shah’s reappointment to the Medical Staff of BHS and his privileges were approved but the exclusivity provision precluded Shah from providing pediatric anesthesia services at six BHS facilities (including NCB). After unsuccessfully suing STAR in Texas state court, Shah sued under the Sherman Act. The Fifth Circuit affirmed summary judgment in favor of the BHS parties. Shah’s definition of the relevant market is insufficient as a matter of law; it does not encompass all interchangeable substitute products because it does not include the two non-BHS facilities that the BHS parties contend serve as viable alternatives to BHS facilities.

Schaden v. DIA Brewing Co., LLC

Court: Colorado Supreme Court

Citation: 2021 CO 4

Opinion Date: January 11, 2021

Judge: Gabriel

Areas of Law: Business Law, Civil Procedure

Plaintiff DIA Brewing Co., LLC contended that after the district court entered an order dismissing this action pursuant to C.R.C.P.12(b)(1), C.R.C.P. 15(a) gave DIA Brewing the right to amend its complaint as a matter of course and without leave of the court or the consent of defendants because no responsive pleading had been filed. Defendants MCE-DIA, LLC and Richard Schaden (collectively, “MCE-DIA”), in contrast, contended that the C.R.C.P. 12(b)(1) dismissal resulted in a final judgment that cut off DIA Brewing’s right to amend as a matter of course under C.R.C.P. 15(a). Thus: if DIA Brewing wanted to amend, it was required to seek leave of the court or to obtain MCE-DIA’s written consent. The Colorado Supreme Court granted certiorari to resolve this dispute, and concluded a final judgment cuts off a plaintiff’s right to file an amended complaint as a matter of course under C.R.C.P. 15(a), and the dismissal order here was a final judgment. Therefore, DIA Brewing did not have the right to amend its complaint as a matter of course, but obligated to request the trial court for leave to amend, or indicate MCE-DIA had consented in writing to the filing of an amended complaint. In this case, the Supreme Court determined the amended pleading was not futile, stating viable claims for relief. The Court thus affirmed the appellate court, though on different grounds, and remanded this case with directions that this case be returned to the district court to accept DIA Brewing’s amended complaint for filing, after which MCE-DIA could respond in the ordinary course.

R & F Financial Services v. North American Building Solutions, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 12

Opinion Date: January 12, 2021

Judge: Jerod E. Tufte

Areas of Law: Business Law, Contracts, Real Estate & Property Law, Zoning, Planning & Land Use

R & F Financial Services, LLC, appealed a district court order dismissing its claims against Cudd Pressure Control, Inc., and RPC, Inc., and granting Cudd’s and RPC’s counterclaims and cross claims. North American Building Solutions, LLC (“NABS”) and Cudd Pressure Control, Inc. (“Cudd”) entered into an agreement where Cudd would lease from NABS 60 temporary housing modules for employee housing. The terms of the Lease required Cudd, at its sole expense, to obtain any conditional use permits, variances or zoning approvals “required by any local, city, township, county or state authorities, which are necessary for the installation and construction of the modules upon the Real Property.” The Lease was set to commence following substantial completion of the installation of all the modules and was to expire 60 months following the commencement date. NABS assigned its interest in 28 modules under lease to R & F; NABS sold the modules to R & F by bill of sale. Cudd accepted the final 32 modules from NABS, to which R & F was not a party. RPC, as the parent company of Cudd, guaranteed Cudd’s performance of payment obligations to R & F under the Lease. The Lease was for a set term and did not contain an option for Cudd to purchase the modules at the expiration of that set term. At the time R & F purchased NABS’s interest in the Lease, it understood the purpose of the Lease was to fulfill Cudd’s need for employee housing. The County required a conditional use permit for workforce housing, and Cudd had been issued a permit allowing for the use of the modules as workforce housing. The City of Williston annexed the Property within its corporate limits. Thereafter, the City adopted a resolution that declared all workforce housing was temporary and extension of permits was subject to review. The City modified the expiration date policy and extended all approvals for workforce housing facilities to December 31, 2015, such that all permits would expire the same day. In December 2015, Cudd successfully extended its permit for the maximum time permitted to July 1, 2016. Cudd sent a letter to NABS stating that it viewed the Lease as being terminated by operation of law as of July 1, 2016. R & F argued the trial court erred in finding the Lease was not a finance lease and, in the alternative, that the court erred in finding the doctrines of impossibility of performance and frustration of purpose to be inapplicable. Finding no reversible error, the North Dakota Supreme Court affirmed.