Improving Landlord-Tenant Relations in Kentucky Through the URLA

Improving Landlord-Tenant Relations in Kentucky Through the URLA

Micah Johnson, KLJ Staff Editor[1]

Kentucky lawmakers should mandate statewide adoption of the Uniform Residential Landlord-Tenant Act of 1972 (hereafter URLTA), because such a move would benefit everyone involved in landlord-tenant relations, including landlords, tenants, and the lawyers and judges in the state that participate in litigation concerning these relations.

Kentucky has had a long and contentious history with the URLTA.[2]> URLTA is model legislation crafted by the National Conference of Commissioners on Uniform State Laws,[3] and the stated purposes of URTA include simplifying the laws governing the rights and obligations of landlords and tenants, as well as encouraging uniformity of these laws across state borders.[4] Kentucky adopted much of the language of URLTA in 1974, but poor legislative draftsmanship and the concomitant confusion concerning scope of the Act’s authority led to subsequent revisions and patchwork “fixes” to the law.[5]  The resulting legislative framework is unduly burdensome for those relying on its guidance.[6]

In 1974, Kentucky adopted KRS §§ 383.500 to 383.715.[7] These statutes repealed existing legislation governing landlord-tenant relations, and replaced those statutes with new legislation modelled closely on the language of URLTA. [8] Included in the Act was KRS §383.530, which stated that the newly adopted Act “applies to, regulates, and determines rights and obligations under a rental agreement wherever made, for a dwelling unit located in the state.”[9] This language matched nearly identically the model language in URLTA §1.201,[10] and applied the new law “uniformly across the state – in every city and every county.”[11] Oddly, however, another section of the Act, KRS § 383.715, stated that the Act “shall apply to counties containing cities of the first class and urban-county governments,”[12] effectively limiting the applicability of the Act to Lexington and Louisville only.[13] KRS § 383.715 seemed to directly contradict the language in KRS § 383.530, which required statewide implementation, and in 1983, the Kentucky Supreme Court declared unconstitutional the statute limiting the scope of the Act.[14]

The high court’s striking down of KRS § 383.715 led to two desirable results: 1) the confusion arising in the judicial system from the Act’s two irreconcilable expressions of scope was resolved, and 2) under KRS § 383.530 the Act applied to all jurisdictions throughout the state, achieving a stated goal of URLTA to “make uniform the law with respect to the subject . . . among those states which enact it.”[15] Unfortunately, the Kentucky legislature could not leave well enough alone, and in the 1984 regular session, they passed several amendments that restored the limited territorial application.[16] In order to clear the constitutional hurdle established in Miles v. Shauntee,[17] the legislature continued to mandate that Lexington and Louisville abide the Act, but gave all other cities, counties, and urban-county governments the right to “opt-in” to URLTA at their own discretion.[18]

Since the enactment of the “opt-in” provision in 1984, seventeen jurisdictions other than Lexington and Louisville have adopted URLTA, creating a patchwork of competing sets of applicable law from jurisdiction to jurisdiction.[19] Localities continue to consider and fiercely debate the wisdom of adopting the Act, with these debates on local adoption taking a prominent role in recent city commission races in the state, for example.[20] While there are many substantive differences between URLTA and Kentucky’s common law (which governs non-URLTA jurisdictions), opponents of statewide adoption of URLTA often point specifically to the Act’s warranty of habitability, arguing that statewide adoption would place undue financial liability on the state’s rural landlords.[21]

A warranty of habitability is a requirement, imposed upon landlords, that “rented premises are and will remain habitable for the duration of the lease period.”[22] In Kentucky jurisdictions not governed by URLTA, the doctrine of caveat emptor (or “buyer beware) holds on issues of habitability, as the Kentucky Court of Appeals has recently held that, absent legislation like URLTA, the state has no constitutionally grounded implied warranty of habitability.[23] The state finds itself in the minority in clinging to caveat emptor in tenant-landlord relations, as Kentucky and Arkansas are the only states that have not yet adopted a statewide warranty of habitability.[24] Not only would statewide adoption of URLTA simplify Kentucky’s inconsistent landlord-tenant law, but it would also bring the state closer in line with other states that have already dealt with the injustices of a caveat emptor approach.[25]

In 1974, Kentucky adopted a version of URLTA, with the stated intent of making “uniform the law with respect to the subject of KRS 383.505 to 383.715 [Kentucky’s URLTA statutes] among those states which enact it.”[26] Instead of making the state’s laws uniform with other states that have adopted the Act, the legislature, through a series of half-measures, have made less uniform the law with respect to landlord-tenant relations within the state. The statutes governing landlord-tenant relations were repealed in 1974 with the adoption of URLTA, and then URLTA’s territorial scope was substantially limited in 1984, leading to a reversion to common law for jurisdictions not opting to adopt URLTA. Not only does this situation make it difficult for tenants to know their rights. Landlords who own properties in multiple jurisdictions may find that differing sets of laws apply to their properties. Likewise, lawyers and judges are forced to apply differing standards to landlord-tenant disputes, depending upon the location of the property in question. It is high time for Kentucky to bite the bullet and adopt URLTA statewide. Everyone involved will benefit from such a move.

[1] J.D./M.P.A. expected May 2019.
[2] See Cara L. Stewart and Ryan C. Smither, Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23, 25–30 (2012).
[3] Christopher Wm. Sullivan, Forgotten Lessons from the Common Law, The Uniform Residential Landlord and Tenant Act, and the Holdover Tenant, 84 Wash. U. L. Rev. 1287, 1288 (2006).
[4] Uniform Residential Landlord and Tenant Act § 1.102(b)(1), (3), at 3 (Nat’l Conf. Commissioners on Uniform St. L. 1972).
[5] Stewart & Smither, supra note 2.
[6] Id. at 23–5.
[7] Uniform Residential Landlord and Tenant Act, 383 KRS §§ 500–715 (1974) (amended 1984).
[8] Id.
[9] George Wm. III Moss, The Kentucky Uniform Residential Landlord and Tenant Act: Tenants’ New Lease on Life, 14 J. Fam. L. 597, 599 (1975).
[10] Uniform Residential Landlord and Tenant Act, supra note 4, § 1.201, at 5.
[11] Stewart & Smither, supra note 2, at 26.
[12] Moss, supra note 9, at 599-600.
[13] Stewart & Smither, supra note 2, at 26.
[14] See Miles v. Shauntee, 664 S.W.2d 512, 517 (1983).
[15] Uniform Residential Landlord and Tenant Act, supra note 4, § 1.201, at 5.
[16] KRS § 383.530 (West 1984).
[17] Miles, supra note 14.
[18] § 383.530.
[19] Legal Aid Network of Kentucky, Reading Your Lease (August 2009), http://kyjustice.org/node/707
[20] See Wes Swietek, Tenant-Landlord Act in Spotlight Again, Bowling Green Daily News, (Oct. 1, 2016), http://www.bgdailynews.com/news/tenant-landlord-act-in-spotlight-again/article_c1eef942-ec5e-5081-8762-7930a0b9c2d7.html
[21] See Stewart & Smither, supra note 2, at 36–42.
[22] Michael A. Brower, The “Backlash” of Implied Warranty of Habitability: Theory vs. Analysis, 60 DePaul L. Rev. 849, 849 n. 1 (2011).
[23] See Wildcat Prop. Mgmt., LLC v. Franzen, 2015 WL 4148288 (Ky. Ct. App. 2015).
[24] See Stewart & Smither, supra note 2, at 38.
[25] See Krista L. Noonan and Frederick M. Preator, Implied Warranty of Habitability: It Is Time to Bury the Beast Known as Caveat Emptor, 33 Land & Water L. Rev. 329, 333– 34 (1998).
[26] KRS § 383.505 (West 1984).

*Featured image licensed under Creative Commons CC0

Partisan Gerrymandering: A Consideration for State Legislatures, Not the Supreme Court

Partisan Gerrymandering: A Consideration for State Legislatures, Not the Supreme Court

Stephanie Renzelman, Staff Editor[1]

In a recent Supreme Court case, the bench has been asked to consider the longstanding custom of redistricting.[2] Gill v. Whitford, a case out of Wisconsin, is forcing the Supreme Court to address the constitutionality of partisan gerrymandering specifically,[3] a question the highest court in the United States has not pondered in over a decade.[4] The crucial deliberation will be over their role in a process that is traditionally a political decision left to a political branch: state legislatures.

In 2010, Republicans in Wisconsin won the majority in both the state assembly and the senate, and similarly went on to claim the governor’s office. [5] This gave Republicans control over maps redrawn following the census.[6] Their redistricting plan was highly scrutinized by Wisconsin Democrats after the 2012 election results demonstrated the effects of politically advantaged gerrymandering.[7] After being neglected this privilege for decades, Republicans took the opportunity to construct a map that would benefit their party for years to come,[8] a concept and strategy we have honored in American politics since the late 18th century.[9]

Maps are redrawn every ten years to reflect population and demographic shifts.[10] In doing so, elected officials have the option to manipulate district lines to protect or alter political power, also known as gerrymandering.[11] Most states give their legislatures full control of these processes from beginning to end.[12] They are responsible for drafting district lines, and are the final authority for accepting and implementing the newly drawn maps.[13]. Supporters believe it makes the most sense for legislatures to play such a significant role as they are the branch that is forced to confront constant partisan tradeoffs and are thus the most qualified to handle the job.[14] Supporters also argue politicians are likely to draw the least controversial district lines considering they are directly accountable to the public.[15] Critics on the other hand disagree with allowing self-interested legislators to draw lines of districts in which they run for office, and overemphasize the interests of the party in control.[16] Regardless of what side one might find themselves on, one aspect we should all agree on is that this is a political arena the Supreme Court should not attempt to referee.

The last time the Supreme Court considered the issue of partisan gerrymandering was in 2004 in the case Vieth v. Jubelirer.[17] The overall issue was whether the Supreme Court, rather than the states or Congress, is the appropriate institution to address partisan gerrymandering issues.[18] Here, the court got it right when their answer was “no.”[19] The court ruled that neither Article I, § 2, nor the Equal Protection Clause “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”[20] Justice Kennedy concurs stating court’s should be cautious when creating a standard to determine whether partisan interests in a redistricting process are excessive, and ultimately that the court should refrain from intervention.[21] Considering the political question doctrine helps us understand why Vieth was concluded this way, and why a similar ruling in Gill is justified.

The political question doctrine says that the Constitution either explicitly or implicitly assigns some constitutional questions to political branches of government, rather than leave them strictly up to the courts.[22] The constitutional text is not necessarily dispositive here, leaving the court to take another route in order to determine the applicability of the doctrine.[23] They must decide whether they may establish a “judicially discoverable and manageable standard” for resolving partisan gerrymandering claims.[24] Plaintiffs in Gill v. Whitford have proposed an efficiency gap standard, a standard based on “wasted votes” developed via social science based research.[25] The court would be required to articulate standards grounded in statistics-based predictions, and battles between political party experts and their respective data.[26] Subjective elements like these are inescapable in the discussion of partisan gerrymandering, and unacceptable criteria for a court to utilize to properly evaluate the law.[27] Each proposed standard thus far presents multiple uncertainties and ultimately highlights the impossibility of a “judicially discoverable and manageable standard” as this problem bestows breeding grounds for political bias.

Redistricting and gerrymandering are time-honored traditions in American politics. Since the development of these concepts, they have been managed and implemented by the states. Associate Justice Gorsuch posed an important question, what source grants the Supreme Court the authority to revise state redistricting maps?[28] He went on to emphasize caution about stepping in here,[29] an essential warning to the rest of the bench. Chief Justice John Roberts supports this notion by claiming that for the good of the Supreme Court’s reputation, they should stay out of it.[30] A win for the plaintiffs in Gill would flood the court with partisan gerrymandering cases.[31] Furthermore, a plaintiff win paints the Supreme Court as one with a Democrat preference.[32] Ruling in the plaintiff’s favor now takes democracy away from legislatures and has the potential to cause great harm to the status and integrity of the highest court.[33]

Overall, it is not the Supreme Court’s place to intervene in questions and processes traditionally subject to political branch control. Such an intervention would truly be an unwarranted disruption of separation of powers and democracy. Partisan issues to this degree have no place in the judiciary, the one branch expected to exert political neutrality. Justice Kennedy explained it best in Vieth, “[a] decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.”[34]

[1] J.D. Expected May 2019.
[2] Amy Howe, Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?, SCOTUSblog (Oct. 3, 2017, 2:13 PM), http://www.scotusblog.com/2017/10/argument-analysis-cautious-optimism-challengers-wisconsin-redistricting-case/.
[3] Whitford v. Gill, 218 F.3d 837, 863 (W.D. Wis. 2016).
[4] Michael Li & Thomas Wolf, 5 Things to Know About the Wisconsin Partisan Gerrymandering Case, Brennan Center for Justice (June 19, 2017), https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case.
[5] Howe, supra note 2.
[6] Id.
[7] Id.
[8] Whitford, 218 F.3d at 853.
[9] Sam Levine, Supreme Court Set To Hear Redistricting Case That Could Remake American Politics, Huffington Post (Oct. 3, 2017, 12:42 AM), https://www.huffingtonpost.com/entry/supreme-court-gill-whitford-redistricting_us_59cd5290e4b0f18c4e3d1343.
[10] Aaron Blake, Redistricting, explained, Wash. Post (June 1, 2011), https://www.washingtonpost.com/politics/redistricting-explained/2011/05/27/AGWsFNGH_story.html?utm_term=.dbc4713050aa.
[11] 7 Things to Know About Redistricting, Brennan Center for Justice (July 3, 2017), https://www.brennancenter.org/analysis/7-things-know-about-redistricting-july-2017.
[12] Justin Levitt, A Citizen’s Guide to Redistricting, Brennan Center for Justice 2, 24 (2010) http://www.brennancenter.org/sites/default/files/legacy/CGR%20Reprint%20Single%20Page.pdf.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Michael C. Dorf, The Supreme Court Gives Partisan Gerrymandering the Green Light–or at Least a Yellow Light, FindLaw (May 12, 2004), http://supreme.findlaw.com/legal-commentary/the-supreme-court-gives-partisan-gerrymandering-the-green-light-or-at-least-a-yellow-light.html.
[18] Dorf, supra note 17.
[19] Id.
[20] Vieth v. Jubelirer, 541 U.S. 267, 305 (2004).
[21] Id. at 316.
[22] Id.
[23] Id.
[24] Id.; see also Baker v. Carr, 369 U.S. 186, 216 (1962).
[25] Harrison & Torchinsky, supra note 20.
[26] Howe, supra note 2.
[27] Levine, supra note 9.
[28] Howe, supra note 2.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Guy Harrison & Jason Torchinsky, The Democrats Take Their Political Problems to Court, National Review (Oct. 3, 2017, 4:00 AM), http://www.nationalreview.com/article/452162/supreme-court-wisconsin-redistricting-democrats-seek-political-advantage; Vieth, 541 U.S. at 306.

The Governor Giveth, and the Governor Taketh Away: The Authority of the Kentucky Governor to Restore Voting Rights for Ex-offenders

The Governor Giveth, and the Governor Taketh Away: The Authority of the Kentucky Governor to Restore Voting Rights for Ex-offenders

Matthew I. Boggs, Staff Editor[1]

            In November 2015, then Governor Steve Beshear issued Executive Order 2015-871[2] which restored voting rights to convicted felons in Kentucky who met certain criteria: they must have completed the terms of their sentence, including any probation and restitution, they must not be facing any pending criminal charges or arrests, and the offense of conviction cannot be a violent crime, a sex crime, bribery, or treason.[3] Many saw this move as a step forward for a more democratic Commonwealth,[4] but the victory was short lived.

            Matthew Bevin moved into the Governor’s Mansion on December 8, 2015,[5] and within weeks had undone Governor Beshear’s work. Governor Bevin issued Executive Order 2015-052[6] and suspended Governor Beshear’s order from one month prior. In doing so, Governor Bevin asserted that Governor Beshear did not possess the legal authority to issue Executive Order 2015-871.[7] He also noted that the Kentucky General Assembly had previously established a statutory method for ex-offenders to restore their voting rights[8] and suggested that the Kentucky General Assembly act by way of a constitutional amendment regarding the matter.[9]

            The Kentucky Constitution denies those convicted of a crime the right to vote,[10] but it also gives the governor the ability to grant pardons.[11] The governor may grant a conditional pardon, which does not take effect until the wrongdoer satisfies certain requirements, or a partial pardon, which exonerates the offender of some, but not all, of the legal consequences of a crime.[12] One of the legal consequences an ex-offender may be exonerated of is the revocation of his or her civil rights.[13] The governor has the power to reinstate an ex-offender’s voting rights by granting a partial pardon.[14]

            The Supreme Court of Kentucky has interpreted the governor’s authority to grant pardons broadly.[15] Months before Governor Beshear’s executive order was signed, the Court reaffirmed its prior holdings stating that “the decision to grant clemency is left to the unfettered discretion of the Governor.”[16] The Court has not limited the civil rights which may be restored.[17] The only limitations that the Court has imposed on the governor are those explicitly set forth in the Kentucky Constitution: that for each application requesting clemency or a pardon, a statement giving the reasons for the governor’s decision must be included, and both the statement and application must be open for public inspection.[18]

            The Kentucky General Assembly has not been silent on the issue either. The legislature created a procedural regulation detailing how an ex-offender may petition the governor for a restoration of his civil rights.[19] However, the General Assembly has not attempted to limit the governor’s pardon power, nor has it made any meaningful strides toward amending the Kentucky Constitution.[20]

            Governor Beshear issued Executive Order 2015-871 as a conditional pardon, thus it was only after an ex-offender completed certain requirements that his or her voting rights would be reinstated. He issued this executive order pursuant to his authority under the Kentucky Constitution, with support from the Kentucky Supreme Court’s interpretations of the Constitution, and he was not limited in that authority by the General Assembly. Governor Beshear recognized that the right to vote is one of the most fundamental rights to a democracy.[21] He believed that such a right was vital to the reintegration of ex-offenders into the community,[22] and that the process for restoring voting rights was unnecessarily time consuming.[23] It is time that Kentucky served as a leader in criminal justice reform by granting all its citizens the right to vote.

[1] J.D. Expected May 2019.
[2] Ky. Exec. Order No. 2015-871 (2015), http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2015-MISC-2015-0871-242277.pdf.
[3] Id.; Mike Wynn, Beshear Restores Voting Rights to Some Felons, Courier J. (Nov. 24, 2015, 10:26 AM), http://www.courier-journal.com/story/news/2015/11/24/beshear-restores-voting-rights-some-felons/76282838/.
[4] Brennan Center for Justice, Kentucky Governor Creates New Process to Help Restore Voting Rights to 170,000 Citizens, N.Y.U. (Nov. 24, 2015), https://www.brennancenter.org/press-release/kentucky-governor-creates-new-process-help-restore-voting-rights-170000-citizens; Erik Eckholm, Kentucky Governor Restores Voting Rights to Thousands of Felons, N.Y. Times (Nov. 24, 2015), https://www.nytimes.com/2015/11/25/us/kentucky-governor-restores-voting-rights-to-thousands-of-felons.html.
[5] Tom Loftus, Matt Bevin Sworn in as Kentucky Governor, Courier J. (Dec. 8, 2015, 1:02 AM), http://www.courier-journal.com/story/news/2015/12/08/bevin-now-governor/76664114/.
[6] Ky. Exec. Order No. 2015-052 (2015), http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2016-MISC-2015-0052-243103.pdf.
[7] Id.
[8] Ky. Rev. Stat. Ann. § 196.045 (West 2001).
[9] Ky. Exec Order No. 2015-052 (2015).
[10] Ky. Const. § 145.
[11] Id.; Id. § 77.
[12] Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003).
[13] Ky. Const. § 145.
[14] Id.
[15] See Foley v. Beshear, 462 S.W.3d 389, 392 (Ky. 2015); Baze v. Thompson 302 S.W.3d 57, 60 (Ky. 2010); Anderson, 107 S.W.3d at 195-96.
[16] Foley, 462 S.W.3d at 392 (quoting Baze, 302 S.W.3d at 60).
[17] See Anderson, 107 S.W.3d at 196.
[18] Foley, 462 S.W.3d at 329; Ky. Const. § 77.
[19] Ky. Rev. Stat. Ann. § 196.045 (West 2001).
[20] Joe Sonka, Gov. Beshear Hints at Executive Action on Restoration of Voting Rights for Former Felons, Insider Louisville (Nov. 18, 2015, 1:48 PM), https://insiderlouisville.com/metro/gov-beshear-hints-executive-action-restoration-voting-rights-former-felons/.
[21] Ky. Exec. Order No. 2015-871 (2015).
[22] Id.
[23] Id.

*Featured image by Tim Evanson, licensed under CC BY-SA 2.0

 

Eliminating the Chase: Fourth Amendment Implications of Warrantless Use of Cell-Site Simulators to Search for Criminal Offenders

Eliminating the Chase: Fourth Amendment Implications of Warrantless Use of Cell-Site Simulators to Search for Criminal Offenders

Katie A. Monin, Staff Editor[1]

In 2008, the Executive Office for United States Attorneys produced several documents in response to a request for records under the Freedom of Information Act.[2] The documents revealed that the U.S. Government had access to, and had been utilizing, cell-site simulators as a means of electronic surveillance.[3] Before this revelation, government use of cell-site simulators was largely unknown to the public;[4] due, in part, to the fact that the FBI would require law enforcement agencies to sign non-disclosure agreements upon purchase of cell-site simulators.[5] Use of cell-site simulators can have significant Fourth Amendment implications since the devices have the capability to search for and locate an individual by tracking the location of his or her cell phone.[6] Despite these Constitutional implications, courts have only recently begun confronting issues regarding what limits the Fourth Amendment[7] places on government use of cell-site simulators.[8] Until the Supreme Court confronts the issue, warrantless use of cell-site simulators during the course of an investigation is likely to continue.

“Cell-site simulators” are portable devices which have the capability not only to “masquerade” as a cell-tower, but can also intercept content from cellular devices within the vicinity.[9] When the cell-site simulator is activated, it emits signals within a particular area.[10] In response to these signals, a cellular device in proximity of the simulator “identifies the simulator as the most attractive cell tower in the area and thus transmits signals to the simulator that identify the device in that same way that they would in a networked tower.”[11] A cell-site simulator does not function like a GPS locator of a cell phone, but it does provide the relative signal strength and general direction of a subject cell phone.[12] If one of the “unique identifying numbers,” like the telephone number, of a cell phone is known, the law enforcement agency can limit the simulator to obtain the signaling information only of that particular cell phone.[13] If one of the cell phone’s unique identifying number is not known, for example, if the individual is using a “burner phone,” the cell-site simulator can acquire it.[14]

Even more concerning than the fact that cell-site simulators enable the police to determine the general vicinity of the cell phone, is that these cell-site simulators also have the capability to intercept the “contents” of communications,[15] as the term is defined in 18 U.S.C. § 2510(8).[16] Most federal law enforcement agencies have adopted internal policies which prohibit the use of a cell-site simulator in this way.[17] This is to avoid violating Riley, a Supreme Court decision prohibiting a warrantless search of content from cell phones absent exigent circumstances;[18] as well as to comply with the federal Pen Register statute, which requires law enforcement agencies to obtain a warrant before employing “a pen register or a trap and trace device.”[19]

While state and local law enforcement agencies are obligated to comply with the Riley standard[20] and the federal Pen Register statute,[21] and thus are not allowed to intercept contents of communications without a warrant, these agencies’ use of cell-site simulators to search for and locate an individual is governed by internal policies or no policies at all.[22] As of 2015, only 18 out of the 24 states that reported having law enforcement agencies that own cell-site simulators have statutes which prohibit warrantless collection of cell phone location information.[23] For example, according to the ACLU Foundation, as of 2015, Kentucky did not have any such legislation which requires law enforcement agencies to obtain a warrant supported by probable cause before utilizing cell-site simulators to identify the location of a cell phone.[24] It is also unknown whether law enforcement agencies in Kentucky have access to such cell-site simulators.[25] Given that state and local law enforcement agencies are not bound by the same internal policies which govern the use of cell-site simulators by federal law enforcement agencies,[26] individual state and local internal policy guidelines may differ in terms of protocol and training requirements for those who operate cell-site simulators in the course of an investigation.[27] State and local law enforcement agencies are not required to adopt the same policies as the DOJ, which require that only certain trained individuals may operate cell-site simulators, in part to ensure that the devices does not intercept content communications.[28] The Supreme Court has not said that state and local law enforcement agencies are required to obtain a warrant supported by probable cause before utilizing a cell-site simulator to identify the location of an individual’s cell phone, even though some federal circuit courts have ruled as much.[29]

Despite the important Fourth Amendment implications which arise from a warrantless use of cell-site simulators during the course of an investigation or apprehension, this issue has not been analyzed by state or federal courts until recently.[30] When light was shed on the government’s use of cell-site simulators in 2008,[31] criminal defendants began to challenge the warrantless use of cell-site simulators as a violation of the Fourth Amendment, and sought to have any evidence obtained during the search to be suppressed at trial.[32] The most recent case involving this issue was decided in September 2017 by the D.C. Court of Appeals.[33] Defendant, Prince Jones, was convicted in 2013 of various counts related to sexual abuse, kidnapping, armed robbery and threats.[34]After obtaining Jones’ cell phone number, and the general location of Jones’ cell phone from the phone company, D.C. Police used a cell-site simulator to locate Jones sitting in a parked car within the area.[35] The D.C. Court of Appeals held that “the use of a cell-site simulator to locate Mr. Jones’s phone invaded a reasonable expectation of privacy and was thus a search.”[36] The D.C. Court of Appeals, in vacating Jones’ conviction and remanding the case back to the trial court, ruled that any evidence which was obtained as a result of the unlawful search must be suppressed.[37]

Even though some lower courts have ruled on the constitutionality of a warrantless use of cell-site simulators during the course of a criminal investigation,[38] until the Supreme Court makes a final ruling on this issue, defendants in jurisdictions where courts have not confronted this issue will have to continue to challenge the admissibility of evidence obtained during such a warrantless search. It seems to be a matter of consensus among the legal community that, because of the Fourth Amendment implications and a desire to avoid a need for further litigation, a final ruling on this issue by the Supreme Court is desirable.[39] It is possible that the recent decision by the D.C. Court of Appeals could result in such a ruling by the Supreme Court, if the government challenges the D.C. Court’s decision.

[1] J.D. expected 2019, University of Kentucky College of Law; B.A. in Sociology, 2016, Western Kentucky University.
[2] Interim Reply from the Executive Office for United States Attorneys’ Offices, Am. Civil Liberties Union (Aug. 12, 2008), https://www.aclu.org/files/pdfs/freespeech/cellfoia_release_074130_20080812.pdf.
[3] Id.
[4] James B. Astrachan & Christopher J. Lyon, Cell-Site Simulators and the Fourth Amendment: Government Surveillance (May 10, 2017), LexisNexis.
[5] Id. (“The news reports similar non-disclosure agreements entered into by law enforcement agencies seeking to purchase cell-site simulators… Typically, the terms of a non-disclosure agreement prohibit the acting law enforcement agency from disclosing any information about the device to the public, and to judges, defense lawyers, and juries.”)
[6] Id.; Daniel Wenner, Stringray Revealed: Cell-Site Trackers and the 4th Amendment, L. 360 (Jan. 25, 2017, 1:51 PM), https://www.law360.com/articles/883130/stingray-revealed-cell-site-trackers-and-the-4th-amendment.
[7] U.S. Const. amend. IV.
[8] See Wenner, supra note 6.
[9] A National Association of Criminal Defense Lawyers Primer: Cell Site Simulators, Berkley L., https://www.law.berkeley.edu/wp-content/uploads/2015/04/2016-4-28_Cell-Site-Simulator-Primer_Final.pdf (last visited Oct. 23, 2017).
[10] Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology at 2 (Sept. 5, 2015), available at https://www.justice.gov/opa/file/767321/download.
[11] Id.
[12] Id.
[13] Id.
[14] A National Association of Criminal Defense Lawyers Primer: Cell Site Simulators, supra note 9.
[15] Astrachan & Lyon, supra note 4.
[16] 18 U.S.C. § 2510(8) (2012) (“‘Contents’, when use with respect to any wire, oral, or electronc communication, includes any information concerning the substance, purport, or meaning of that communication.”).
[17] See Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, supra note 10 at 3.
[18] Riley v. California, 134 S.Ct. 2473, 2493-94 (2014).
[19] 18 U.S.C. § 3121(a) (2011) (“Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978.”).
[20] Riley, 134 S.Ct. at 2493-94.
[21] 18 U.S.C. § 3121(a) (2011).
[22] A National Association of Criminal Defense Lawyers Primer: Cell Site Simulators, supra note 9.
[23] Peter Cihon, Status of Location Privacy Legislation in the States: 2015, Am. Civil Liberties Union (Aug. 26, 2015, 1;15 PM), https://www.aclu.org/blog/free-future/status-location-privacy-legislation-states-2015.
[24] Id.
[25] Stingray Tracking Devices: Who’s Got Them?, Am. Civil Liberties Union, https://www.aclu.org/issues/privacy-technology/surveillance-technologies/stingray-tracking-devices-whos-got-them (last visited Oct. 25, 2017).
[26] See, e.g., Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, supra note 10 at 2-3 (outlining certain required “management control and approval processes” the DOJ agencies must follow to “help ensure that only knowledgeable and accountable personnel will use the technology.”).
[27] A National Association of Criminal Defense Lawyers Primer: Cell Site Simulators, supra note 9.
[28] See, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, supra note 26.
[29] A National Association of Criminal Defense Lawyers Primer: Cell Site Simulators, supra note 9; Tom Jackman, Police Use of ‘StingRay’ Cellphone Tracker Requires Search Warrant, Appeals Court Rules (Sept. 21, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/09/21/police-use-of-stingray-cellphone-tracker-requires-search-warrant-appeals-court-rules/?utm_term=.fdb533833a87.
[30] Astrachan & Lyon, supra note 4.
[31] Interim Reply from the Executive Office for United States Attorneys’ Offices, Am. Civil Liberties Union (Aug. 12, 2008), https://www.aclu.org/files/pdfs/freespeech/cellfoia_release_074130_20080812.pdf.
[32] See, e.g., State v. Andrews, 227 Md. App. 350, 134 A.3d 324 (2015); see also United States v. Patrick, 842 F.3d 540 (7th Cir. 2016).
[33] Jackman, supra note 29.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Wenner, supra note 6; Astrachan & Lyon, supra note 4.

Featured Image by Biswarup Ganguly, licensed under CC BY 3.0

Social Media: Will Bevin Be Sliced by a Double-edged Sword?

Social Media: Will Bevin Be Sliced by a Double-edged Sword?

Timothy Lovett, KLJ Staff Editor[1]

The rise of social media has presented a new and cheap means of disseminating information and interacting with others.[2] The usefulness of social media platforms has not gone unnoticed by politicians, a profession whose very employment depends on communicating with the electorate in whatever medium they can access.[3] But what happens when a politician utilizes the block function provided by social media platforms to silence trolls, hecklers, or critics?[4] Kentucky Governor Matt Bevin may soon find out.

On February 8, 2017, Drew Morgan, a Jefferson County resident going under the Twitter alias @GoBigBlueDrew,[5] was blocked from commenting on the verified Twitter feed of Governor Matt Bevin, @GovMattBevin,[6] after leaving a series of tweets opining on the “status of the Governor’s then-overdue property taxes.”[7] In a similar incident, Mary Hargis, a Rowan County resident, was blocked in July, 2017 from accessing or commenting on the official Bevin’s Facebook page, titled GovMattBevin,[8] after leaving multiple comments regarding Governor Bevin’s right-to-work policies and his skilled labor apprenticeship program.[9] These are just two of the nearly 600 social media users that the American Civil Liberties Union of Kentucky has filed suit on behalf of to challenge Governor Bevin’s alleged abuse of Twitter and Facebook.[10]

The basis of the ACLU’s claims is that social media services, such as Facebook and Twitter, when set up by government actors and used while acting in their official capacities should be considered “public forums.”[11] And that by banning or blocking constituents from accessing them, the government actors are engaging in an “unlawful prior restraint” on past and future speech in violation of the First Amendment.[12] The First Amendment provides that “Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[13]

Courts have held that when a government official creates a general public forum of discussion, there is a broad allowance of speech allowed at that forum, with very limited exceptions on what the government can censor.[14] Among those restricted types of speech are fighting words, obscene speech, true threats, child pornography, and commercial speech that concerns illegal activity or that is false or misleading.[15] Courts have, however, gone on to categorize different forums and the speech allowed within them,[16] leading to some uncertainty as to which category social media sites will fall.[17] So the real questions facing Governor Bevin is whether or not his social media accounts will be considered “public forums” that would trigger First Amendment protections for the constituents who seek to use them as a platform for speech.

This very question was recently addressed by a federal district court in the case of Davison v. Loudon County Board of Supervisors et al.[18] The defendants, members of a local school board, were accused of temporarily blocking the plaintiff from their official Facebook page after the plaintiff voiced concerns about the lead defendant’s ethical nature.[19]The court first established that a government official who creates a social media account for the seeming purpose of running for public office or for addressing their constituents and as a “tool for governance” once elected is acting under the color of law.[20] Utilizing precedent from the Fourth Circuit,[21] the court expanded the scope of the “public forum” definition to include social media as the creation of a social media account can be seen as “open[ing] a digital space for the exchange of ideas and information.”[22] The court side-stepped the issue of forum definitions by finding that the defendant was “engaged in viewpoint discrimination” which is “prohibited in all forums.”[23] By combining these observations, the court found that the defendant’s actions of creating the public forum under the guide of government actor, then blocking the plaintiff from participating, constituted a violation of the plaintiff’s First Amendment rights.[24]

Where does that leave Governor Bevin? Although Davison, seems directly on-point, it is merely persuasive and the court’s holding was made “under the specific circumstances presented.”[25] In addition, neither the Sixth Circuit nor the Supreme Court have directly addressed social media blocking by politicians. With no mandatory precedent and a seemingly narrow holding in Davison, Governor Bevin’s legal team has room to argue.[26]Whichever way the court eventually finds on Governor Bevin’s social media use, the court’s ruling will surely prove instructive on present and future claims of this nature. Governor Bevin is joined by Maryland Governor Larry Hogan,[27] Maine Governor Paul LePage,[28] and President Donald Trump[29] in defending their social media blocking habits in court.

[1] J.D. Expected May 2019.
[2] See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997).
[3] Jared Newman, Political Campaigns and Social Media—Tweeting Their Way Into Office, South University (Oct. 5, 2012), https://www.southuniversity.edu/whoweare/newsroom/blog/political-campaigns-and-social-media-tweeting-their-way-into-office-106986.
[4] For an explanation of blocking on Twitter, see Twitter, Blocking Accounts on Twitter, https://support.twitter.com/articles/117063 (last visited Oct. 31, 2017); for an explanation of blocking on Facebook, see Facebook, What is blocking? What happens when I block someone?, https://www.facebook.com/help/131930530214371?helpref=faq_content (last visited Oct. 31, 2017).
[5] Drew Morgan (@GoBigBlueDrew), Twitter, https://twitter.com/gobigbluedrew (last visited Oct. 31, 2017).
[6] Matthew Bevin (@GovMattBevin), Twitter, https://twitter.com/govmattbevin (last visited Oct. 31, 2017).
[7] Complaint at 8, Morgan v. Bevin, No. 3:17-cv-00060 (E. Dist. Ky. July 31, 2017).
[8] Matthew Bevin, Facebook, https://www.facebook.com/GovMattBevin/ (last visited Oct. 31, 2017).
[9] Supra note 7 at 10.
[10] Id. at 7, 9; Morgan Watkins & Phillip M. Bailey, Kentuckians Sue Gov. Matt Bevin for Blocking Them on Twitter and Facebook, Courier-Journal (July 31, 2017, 11:23 AM), http://www.courier-journal.com/story/news/2017/07/31/kentuckians-sue-gov-matt-bevin-blocking-them-twitter-and-facebook/519427001/.
[11] Supra note 7 at 12, 13.
[12] Id.
[13] U.S. Const. amend. I.
[14] Perry Education Association v. Perry Local Educators, 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).
[15] See Shikha Parikh, Your Right to Speak on Government Sponsored Social Media Sites, 50 Md. B.J. 14, 18 (2017).
[16] See Marc Rohr, First Amendment For a Revisited: How Many Categories Are There?, 41 Nova L. Rev. 221 (2017).
[17] See Lyrissa Lidsky, Public Forum 2.0, B.U. L. Rev. 1975, 1996-8 (2011); see also Packingham v. North Carolina, 137 S.Ct. 1730, 1738 (2017) (Alito, J., concurring).
[18] No. 1:2016cv00932-Document 57 (E.D. Va. 2017).
[19] Id. at 12–13
[20] Id. at 15–22.
[21] Id. at 25–26 (citing Page v. Lexington Cnty. Sch. Dist. One, 531 F.3d 275, 284 (4th Cir. 2008)).
[22] Id. at 25.
[23] Id. at 27 (quoting Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006)).
[24] Id. at 31–32.
[25] Id. at 32.
[26] See Matthew Giowicki, Bevin Answers ACLU’s Lawsuit and Says Blocking Followers on Social Media Within his Rights, Courier-Journal (Aug. 24, 2017, 6:58 PM), http://www.courier-journal.com/story/news/politics/2017/08/24/bevin-answers-aclus-lawsuit-says-blocking-followi-blocking-says-off-topic-spam-not-social-media-righ/599481001/.
[27] Ovetta Wiggins, Gov. Larry Hogan Sued by ACLU for Deleting Comments, blocking Facebook Users, The Washington Post (Aug. 1, 2017), https://www.washingtonpost.com/local/md-politics/md-aclu-sues-governor-for-deleting-comments-and-blocking-facebook-users/2017/08/01/9723d4a6-76d8-11e7-9eac-d56bd5568db8_story.html?utm_term=.0071a61127c3.
[28] Spencer Buell, The ACLU Is Suing Paul LePage for Blocking People on Facebook, Boston Magazine (Aug. 9, 2017, 10:38 AM), http://www.bostonmagazine.com/news/2017/08/09/aclu-paul-lepage/.
[29] Josh Gerstein, Feds Fight Suit Over Trump Twitter Blocking, Politico (Aug. 12, 2017, 11:46 AM), https://www.politico.com/blogs/under-the-radar/2017/08/12/trump-twitter-blocks-federal-lawsuit-241566.

*Featured image by Gage Skidmore, licensed under CC BY-SA 2.0

The Aftermath of Osborne v. Keeney: The Extent of Damages Recoverable for Pre-Accident Fright

The Aftermath of Osborne v. Keeney: The Extent of Damages Recoverable for Pre-Accident Fright

Abbie Carrico, Staff Editor[1]

In 2012, departing from decades of precedent, the Kentucky Supreme Court did away with the impact rule.[2] This rule, arguably functioning similarly to Restatement (Second) of Torts section 436A,[3] required one to prove physical harm prior to alleged emotion distress.[4] Once the rule was eliminated, Kentucky seemingly opened the door to a new category of damages:[5] pre-accident fright,[6] referred to as pre-impact fright in many jurisdictions.[7] However, since the ruling in Osborne was passed down, Kentucky’s stance on pre-accident fright has not been clearly articulated. It would seem that an award is easily attainable in survival actions where a victim can articulate his or her awareness of danger, but, in wrongful death actions, such damages are arguably inherently speculative and unnecessary.

Recovery for pre-accident fright is not a novel concept. It has frequently been addressed in aviation litigation,[8] but is also recognized as a category of damages in “more mundane situations such as automobile accidents.”[9] The ability to recover for pre-accident fright has become more acceptable generally, but is not universally accepted.[10] Many courts remain concerned that an award for pre-accident fright, like other distinct categories of pain and suffering and emotional distress, is inherently speculative under the circumstances.[11]

In Kentucky, it appears that one is more likely to recover damages for pre-accident fright in a survival action than one in a wrongful death action. This is largely because, without a victim’s testimony, there is often little to no objective evidence[12] available to determine the extent of injuries. Furthermore, it is unclear what amount of objective evidence, if any can be sufficiently provided, can prove an individual’s conscious pain prior to death.[13] In regard to Kentucky, the standard of proof can best be inferred from prior cases.

In 2007, the Kentucky Supreme Court made it seem possible that if the impact rule were eradicated, a plaintiff could recover pre-accident fright if “the victim could give a first-hand account or [a] reliable eye-witness testimony is available.”[14] Yet, the Court, reviewing the evidence available, said damages would not be appropriate in the wrongful death matter even had the rule been abandoned.[15] This was because the victim, having been killed by impact, was not available to testify, and the emergency services worker’s opinion of the “grimace on the victim’s face” was not supported by scientific or medical proof sufficient to show an emotional injury.[16] From this, it would appear that, absent the impact rule, pre-impact fright injuries will be award in wrongful death cases only where sufficient objective evidence is available.

Just of few years later, in Osborne, the court invalidated the impact rule, seemingly making it easier for plaintiffs in tort cases to receive emotional distress damages, and making it possible for one to receive additional damages for pre-accident fright.[17] However, the court did not recognize pre-accident fright specifically, nor did it abandon the rationale of the impact rule: “[E]motional distress[, without physical contact,] ‘is possibly trivial and simply too speculative and difficult to measure unless [it is] directly linked to and caused by a physical harm.’”[18] In doing this, the court maintained that even without the impact rule, emotional distress damages should not be awarded in trivial cases or when the evidence is too speculative.[19] Thus,  as predicted in Congleton, a plaintiff, regardless of the negligence claim, must sufficiently prove that an pre-accident fright created severe or serious injury, and he or she “must present expert medical or scientific proof to support the claimed injury or impairment.”[20]

Since the rational of the impact rule remains a concern in Kentucky, courts should be cautious not to award plaintiffs, especially those pursuing a wrongful death action, pre-accident fright damages where sufficient objective evidence is not provided. Doing so will only delegitimize the Kentucky courts long-standing interpretation of a plaintiff’s ability to recover emotional distress damages.[21] Additionally, awarding such damages without sufficient proof is unnecessary when there are other more natural, proximate, and foreseeable damages obtainable by a personal representative under other areas of the law.[22] Lastly, limiting the availability of pre-accident fright damages in wrongful death matters prevents a sympathetic jury who wants to “give” the survivors something from giving excessively or improperly.[23]

[1] J.D. Expected May 2019.
[2] Id.
[3] Compare Meg Ellen Phillips, A Post-Impact Fear of Pre-Impact Fright, 99 Ky. L. J. 401 (2011) with Thomas D. Sydnor, II, Damages for a Decedent’s Pre-Impact Fear: An Element of Damages Under Alaska’s Survivorship Statute, 7 Alaska L. Rev. 351 (1990).
[4] Restatement (Second) of Torts § 436A (1965).
[5] See Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 930 (Ky. 2007) abrogated by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012) (expressing, in dictum, that if the impact rule were eradicated, a plaintiff could recover “pre-impact fright” if “the victim could give a first-hand account or [a] reliable eye-witness testimony is available”).
[6] The term “pre-accident fright” will be employed throughout this post because the terminology “pre-impact fright, fear, or terror” seems to indicate that the impact rule is still valid. Pre-accident fright “means fear, terror, and mental anguish experienced when an individual apprehends that an impending impact or injury will likely result in the death of the individual.” Sydnor, supra note 3, at 351.
[7] Beynon v. Montgomery Cablevision Ltd. P’ship, 718 A.2d 1161 (Md. 1998); Malacynski v. McDonnell Douglas Corp., 565 F. Supp. 105, 106 (S.D.N.Y 1983); Nelson v. Dolan, 434 N.W.2d 25, 32 (Neb. 1989).
[8] Sydnor, supra note 3, at 355.
[9] Id.
[10] J. Denny Shupe & Tracey Dolin Waldmann, Compensatory Damages in Aviation Litigation: How to Avoid and Reduce Speculation and Faulty Assumptions in Compensatory Damage Awards (June 24, 2009) (unpublished manuscript presented at ACI Conference).
[11] E.g., Moorhead v. Mitsubishi Aircraft Int’l, 828 F.2d 311, 313-15 (5th Cir. 1984); Fogarty v. Campbell 66 Express, Inc., 640 F. Supp. 953; Douglass v. Delta Air Lines, 709 F. Supp. 745, 765-66 (W.D. Tex. 1989), modified on other grounds, 897 F.2d 1336 (5th Cir. 1990).
[12] See Nye v. Com., Dep’t of Transp., 331 Pa. Super. 209, 216 (1984) (holding an estate may recover damages for pre-impact fright “only upon proof” that the deceased experienced physical harm as a result of her fear of impending death).
[13] See, e.g., Feldman v. Allegheny Airlines, Inc., 382 F. Supp 1271, 1301 (D. Conn. 1974); Moorhead v. Mitsubishi Aircraft Internation, Inc., 828 F.2d 278, 288 (5th Cir. Tex 1987); Shatkin v. McDonnel Douglas Corp., 727 F.2d 202, 206 (2d Cir. N.Y. 1984).
[14] Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 930 (Ky. 2007) abrogated by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012)
[15] Id.
[16] Id.
[17] Osborne v. Keeney, 399 S.W.3d 1, 17-18 (Ky. 2012).
[18]Id.
[19] Id.
[20] Id.
[21] Hetrick v. Willis, 439 S.W.2d 942, 944 (Ky. 1969) (holding that one cannot recover where no evidence of conscious pain and suffering exists)
[22] E.g., Ky. Rev. Stat. Ann. § 411.130 (2017).
[23] Michael Bersani, Pre-Death Terror Claims Can Be Worth A Lot in New York Wrongful Death Cases, Central New York Injury Lawyer Blog (Dec. 27, 2014) https://www.centralnewyorkinjurylawyer.com/2014/12/pre-death-terror-claims-can-be.html.

*Featured image by Joshua Kimberly , licensed under CC BY-SA 4.0

The Never Ending Traffic Stop: Why Informing Citizens of Completion is Necessary

The Never Ending Traffic Stop: Why Informing Citizens of Completion is Necessary

Madeline Moss, Staff Editor[1]

            Particularly concerning today’s political climate, defining the line regarding acceptable police practices grows ever more important. Although rules have been established to curtail the ability of law enforcement to prolong traffic stops, the practical effect will be minimized due to the fact that law enforcement officials do not have to inform citizens of when they are free to leave after a routine traffic stop has been completed.[2]

This ambiguity is evidenced by the seemingly incompatible Supreme Court rulings in Ohio v. Robinette[3] and Rodriguez v. United States. [4] In Robinette, the defendant was pulled over for speeding and given a verbal warning.[5] Upon returning his license, the officer then asked if the defendant had any contraband in the car.[6] The defendant said no, yet consented to a search that produced a small amount of marijuana and one methylenedioxymethamphetamine (MDMA) pill.[7] Although the Supreme Court of Ohio attempted to create a bright line rule establishing that law enforcement officers must inform citizens stopped for traffic offenses when they are free to go before requesting a voluntary consent search,[8]the Supreme Court of the United States reversed.[9] They stated that although knowledge of the right to refuse consent is a cumulative factor, it is not a required element of an effective consent and, furthermore, would be unrealistic to require of law enforcement officers.[10]

Twenty years later, Rodriguez comes before the Supreme Court, challenging the constitutionality of prolonging a traditional traffic stop—without reasonable suspicion—to allow time for a drug dog to come perform a “sniff” around the vehicle.[11] The court held that prolonging a traffic stop past the time reasonably required to complete the mission of the stop in order to perform a dog sniff without reasonable suspicion constitutes an unreasonable seizure, stating that once the “mission” of the traffic stop had been completed, any detention resulting from the extension of that stop would be unlawful.[12]

Although heeding the precedent laid down in previous cases, Rodriguez establishes a line drawn by the Court to constrain the constitutionally allowable length of a citizen’s detention incident to a traffic stop.[13] The line drawn by this ruling is muddied, however, by the fact that officers are not legally required to give notice that the mission of the stop has completed pursuant to Robinette.[14] Therefore, once the mission of a stop has been completed, satisfying Rodriguez, the officers still remain free to continue the stop by requesting a voluntary consent search, or a search that is “the product of a person’s free will and unconstrained choice.”[15] Many argue, however, that due to the authoritative nature of a police presence and the coercion that accompanies it, consent to these types of searches rarely comports with that definition.[16] Many people still feel obligated to allow a police officer to search, regardless of the tone of the request.[17]  This is particularly true of members of certain racial and cultural groups who fear confrontation with the police.[18]

Unfortunately, the average citizen does not know when the mission of the stop has been completed, and when he or she is free to leave unless explicitly told. Until a bright line rule establishing that law enforcement officials must inform citizens when the mission of the traffic stop has been completed, the rule laid down in Rodriguez may not have the same practical effect in every day interactions with law enforcement as it does in theory.

[1] J.D. Expected May 2019.

[2] Rodriguez v. United States, 135 S. Ct. 1609 (2015); Ohio v. Robinette, 519 U.S. 33 (1996).

[3] Robinette, 519 U.S. at 40.

[4] Rodriguez, 135 S. Ct. at 1616.

[5] Robinette, 519 U.S. at 35.

[6] Id. at 35–36.

[7] Id. at 36.

[8] Id. at 36

[9] Id.

[10] Id. at 38, 40.

[11] Rodriguez, 135 S. Ct. at 1614.

[12] Id. at 1615.

[13] Rodriguez, 135 S. Ct at 1615. See generally Arizona v. Johnson, 555 U.S. 323 (2009); Illinois v. Caballes, 543 U.S. 405 (2005) (admonishing that a traffic stop can become unlawful if prolonged beyond the time reasonably required to complete the mission).

[14] Robinette, 519 U.S. at 39–40.

[15] Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2002).

[16] Id. at 241.

[17] Id. at 242.

[18] Id. at 244.

*Featured image provided by Highway Patrol Images, licensed under CC BY 2.0

Conservation Easements: Is it “In Perpetuity” or “Close Enough”?

Conservation Easements: Is it “In Perpetuity” or “Close Enough”?

Bethany Davenport, Staff Editor[1]

Since 1980, conservation easements have been allowed as a tax-deductible donation as long as they were granted “in perpetuity.”[2] 26 U.S.C. § 170(h) has “in perpetuity” as a provision to protect the purpose of the conservation easement.[3] The statute states, “[a] contribution shall not be treated as exclusively for conservation purposes unless the conservation purpose is protected in perpetuity.”[4] Although a seemingly straightforward phrase, the words “in perpetuity” have earned a new spotlight in interpreting tax code.

On August 11, 2017, the Fifth Circuit, in BC Ranch II, L.P. v. Comm’r, decided that a conservation easement which allowed for the prospect of a future change in a conservation easement did not violate the term “in perpetuity,” and therefore was allowable for tax deduction purposes.[5] Specifically, the conservation easement at issue reserved a right to the grantors, Bosque Canyon Ranch II, L.P. and BC Ranch I, Inc., to change the location of designated home site parcels. The Fifth Circuit held that such a reserved right did not violate the purpose of the conservation easement since the grantee, North American Land Trust (NALT), would have to agree to the change, that the change would not violate the purpose of the conservation easement, and that the size of the conservation easement would not change.[6]

The decision in BC Ranch II has caused a circuit split. In 2015, the Ninth Circuit, in Minnick v. Comm’r, considered the tax consequences of a conservation easement in which a mortgage lender’s interest in a piece of property was not subordinate to the interest of the recipient of a conservation easement.[7] The Ninth Circuit held that the conservation easement was not eligible for a tax deduction.[8] Minnick was pointed to in the dissent of BC Ranch II.[9] Even though there is a specific treasury regulation that mentions the disallowance of a tax deduction when a mortgage is not subordinate to the purpose of the conservation easement,[10] the logic of this decision should have been applied in BC Ranch II. If the conservation easement allows for a change in the future that could disrupt the conservation purpose, then it should not be allowed.

The Fifth Circuit argued that since NALT must agree to a change in the location of a home site parcel and since the change cannot negatively affect the conservation purpose, these requirements should be sufficient to allow for the deduction.[11] This reasoning seems like it could easily lead to fraudulent gifts of conservation easements. In other words, a conservation easement could easily be given even though the grantor did not have the intent of the conservation easement existing on “in perpetuity.” Once conservation restrictions have been applied to a piece of real property, the value of the conservation easement is taken from the decrease in value on a piece of real property.[12] The appraised value of a deduction for a conservation easement is assessed when the piece of property is donated.[13] Changing a location of a restricted area on a piece of property could change the appraisal value of a tax deduction, even if it does not necessarily alter the conservation purpose. The current code on conservations easements does not allow for future changes in appraised value.[14]

Since 2000, the acres of land held by conservation easements has grown from 24 million[15] to 56 million in 2015[16], a 125% increase. This fact lends support to the assertion that “in perpetuity” needs a firm interpretation either in the form of a regulation, or from a ruling by the Supreme Court. A firm interpretation of the phrase “in perpetuity” would halt further confusion on what the phrase really means, and thereby decrease the necessity of future cases.

[1] J.D. Expected May 2019.
[2] 26 U.S.C. § 170 (h)(5)(A) (Supp. IV 1980).
[3] 26 U.S.C. § 170 (h)(5)(A) (2012).
[4] Id.
[5] BC Ranch II, L.P. v. Comm’r, 867 F.3d 547, 554 (5th Cir. 2017).
[6] Id. at 552.
[7] Minnick v. Comm’r, 796 F.3d 1156, 1160 (9th Cir. 2015).
[8] Id.
[9] BC Ranch, 867 F.3d at 561.
[10] Minnick, 796 F.3d at 1160.
[11] BC Ranch II, L.P. v. Comm’r, 867 F.3d 547, 554 (5th Cir. 2017).
[12] 26 C.F.R. § 1.170A-1 (2017).
[13] See id.
[14] 26 U.S.C. § 170(h) (2012).
[15] Zachary Bray, Reconciling Development and Natural Beauty: The Promise and Dilemma of Conservation Easements, 34 Harv. Envtl. L. Rev. 119, 124 (2010).
[16] 2015 National Land Trust Census Report 3, Land Trust Alliance (2016), http://www.landtrustalliance.org/about/national-land-trust-census.

*Featured image by U.S. Department of Agriculture, licensed under CC BY 2.0

Could Louisville be Liable for Rick Pitino’s Entire Coaching Contract?

Could Louisville be Liable for Rick Pitino’s Entire Coaching Contract?

Jacob M. Bartlett, Staff Editor[1]

In what is probably the most talked about news story of the week, questions still stand on exactly how far the recent FBI bribery probe will go.[2] So far, ten people have been arrested[3] and several others implicated in a two-year bribery and corruption scandal involving college basketball players, coaches, and sports apparel employees.[4] Reports first hit the news on Tuesday morning, the day after the U.S. Attorney’s office for the Southern District of New York filed its report.[5] News spread quickly and lit a fire under many college basketball fans, but especially those here in Kentucky. The documents did not reveal names or institutions, but basketball fans connected the dots; University 6 was Louisville.[6]

Athletic director, Tom Jurich, was put on paid leave.[7] Soon after, head coach Rick Pitino was put on unpaid leave, “which means he [was] in effect fired according to his attorney.”[8] This did not surprise many because it was the third scandal Pitino was involved with in the past ten years.[9] To the average fan this seems like a no-brainer decision, and many may be wondering why he hasn’t officially been fired yet. Unfortunately, nothing in the law is ever that simple. Considering Coach Pitino is under contract for over $2,000,000 a year plus significant bonuses[10], the decision to terminate is never clear. Under the right circumstances, The University could be found to be in breach of their contract and consequently owe Coach Pitino every penny up front as if he continued coaching. As a student taking an employment law class currently studying the topic of “just cause termination,” and avid Kentucky basketball fan, I find it troubling to say that Louisville might want to hold off on any immediate decisions.

The default rule in Kentucky is that employment is “at-will.”[11] Most people correctly understand this to mean that both employer and employee have the right to end the agreement with no consequences or additional monies owed. Sophisticated employment situations, especially where the employee has intrinsic value, tend to contract around this rule to provide for job security and limit the situations that can lead to a termination. This is referred to as “just cause.” Coach Pitino’s contract has a fairly extensive “just cause” provision.[12] Three sections are extremely relevant in the current decision-making process at the University of Louisville.[13]

First, and the easiest reason for Louisville to heed caution, is paragraph 6.1 which requires termination to follow a ten-day notice period for Coach Pitino to offer evidence in his defense.[14] A simple provision, yet an important one. If Louisville decides to officially fire Coach Pitino without following this paragraph, they will be in breach of the contract. Don’t expect any immediate decisions from Louisville at least until after this notice period. Louisville’s counsel surely is aware of this requirement, hence the unpaid administrative leave.

If the notice period is properly followed, Louisville still needs a reason that satisfies the contract’s “just cause” provision to fire Coach Pitino. The first argument for Louisville lies in paragraph 6.1.3 which states: “major violation of any rule, which violation damages Employer or the University in a material fashion.”[15] Without evidence that he was involved or aware of the bribery, Coach Pitino would have a strong case that this provision has not been triggered. Even if Coach Pitino was involved in the scandal, The University must be careful in how it frames Coach Pitino’s termination.[16] In O’Brien v. Ohio State Univ., defendant’s motion to reconsider an earlier ruling that it breached a contract was denied and the coach was awarded $2,253,619.45 .[17] Defendant originally terminated a basketball coach’s contract for giving a loan to a recruit yet failed to properly cite that termination was due to violation of the contractual provision to follow NCAA rules.[18] The court held that defendant could not base it’s just cause argument on a provision it was aware of and ignored to highlight at the time of termination.[19]

Interestingly, paragraph 6.1.3 was recently amended during Coach Pitino’s contract extension. His previous contract included: “Employee shall not be responsible for misconduct of third parties, assistant or other representative unless Employee was aware and failed to report it or Employee failed to exercise diligent, careful supervision.”[20] Prior to his current contract, which was signed in June 2015, The University would have had a much stronger argument to fire Coach Pitino under this section. The University would be able to show “just cause” by claiming that Coach Pitino failed to “exercise diligent, careful supervision” of his assistants.[21] Although there is not an explicit definition of what this provision requires, it would clearly be a strong argument against Coach Pitino. Combining the prior scandal involving assistant coaches hiring escorts for recruits, Coach Pitino would have to fight an extremely uphill battle to convince a judge or jury that he carried out his duties of supervision. In contracts every clause has the potential for major impacts down the road and this revision highlights the necessity of careful reading and negotiating.

Paragraph 6.1.2 includes “Disparaging media publicity of a material nature that damages the good name and reputation, if such publicity is caused by Employee’s willful misconduct.”[22] Again, this provision appears to be satisfied, but only if more evidence about his involvement comes forward. The recent media attention would likely be objectively damaging, but unless Louisville can show that Coach Pitino was actively involved or aware of and hid the scandal, Coach Pitino has not yet provided “just cause” to be terminated. Without evidence of “willful misconduct”[23], Louisville could be gambling by firing Coach Pitino and placing itself into an extensive and expensive legal battle.[24]

As it stands, Coach Pitino remains adamant that he was not involved in the scandal nor did he have any knowledge of it.[25] If evidence is revealed to the contrary then Coach Pitino stands no chance: he clearly violated his contract. Several sources have begun reporting that Coach Pitino is one of the unnamed members in the FBI documents who had active participation, but the source remains anonymous and many remain skeptical.[26] Until further information comes out, which could be months, look for Coach Pitino to pursue potential legal options if fired.[27] Although expensive and potentially marring to what remains of his image and legacy in Kentucky, Coach Pitino may have a strong argument to be awarded his contract salary. With tens of millions of dollars left on the table, wouldn’t you?

[1] J.D. expected May 2019.
[2] Jeff Jacobs, NCAA Mess Is Only Going To Get Worse, Source Hartford Courant, (Sept. 28, 2017, 6:36 AM), http://www.courant.com/sports/uconn-mens-basketball/hc-jacobs-column-college-scandal-0928-20170927-column.html
[3] Lauren Thomas, FBI arrests NCAA basketball coaches and Adidas rep, Source CNBC, (Sept. 26, 2017, 10:06 AM), https://www.cnbc.com/2017/09/26/ncaa-basketball-officials-arrested-on-fraud-and-corruption-charges.html
[4] College Basketball Scandal, Source CBS Sports (Sept. 29, 2017, 6:20 PM), https://www.cbssports.com/college-basketball/news/college-basketball-scandal-updates-news-on-rick-pitino-fbi-investigation/
[5] Lauren Thomas, supra note 2.
[6] See id. (discussing that student enrollment of University 6 matched the University of Louisville).
[7] College Basketball Scandal, supra note 3.
[8] Id.
[9] Id.
[10] Contract between Rick Pitino and Univ. of Louisville, (July 1, 2015) https://media.bizj.us/view/img/8556042/pitino-current-contract.pdf, [https://perma.cc/M238-MTBB], [Hereinafter Current Contract].
[11] Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 419 (Ky. 2010) (defining the “common law doctrine that an employer may discharge his at will employee for good cause, no cause, or for a cause that some might view as morally indefensible”) (internal citations omitted).
[12] Current Contract, supra note 9, at 12
[13] Id.
[14] Id.
[15] Id. (significant portions omitted).
[16] See O’Brien v. Ohio State Univ., 859 N.E. 2d 607 (Ct. Cl. Oh. 2006).
[17] Id. at 613, 614, 620.
[18] Id.  at 613, 614.
[19] Id.
[20] Read a copy of Rick Pitino’s Employee Contract with UofL, Source Lexington Hearld-Leader, http://www.kentucky.com/latest-news/article42472677.ece/BINARY/Read%20a%20copy%20of%20Rick%20Pitino%27s%20employee%20contract%20with%20UofL (significant portions omitted, emphasis added).
[21] Id.
[22] Current Contract, supra note 10.
[23] Id.
[24] But see Haywood v. Univ. of Pittsburgh, 976 F.Supp.2d 606 (W.D. Penn. 2013) (granting University’s motion for summary judgment on former football coaches claim for breach of employment contract following domestic violence incident and claim of breach of good faith by not waiting for investigation to be completed before termination).
[25] Rick Pitino issues statement of ‘a thousand thanks’, Source Wave 3 News (Sept. 29, 2017, 5:13 PM), http://www.wave3.com/story/36487364/rick-pitino-issues-statement-of-a-thousand-thanks
[26] Louisville coach Rick Pitino may have helped get Adidas money to prized recruits, Source CBS News (Sept. 28, 2017, 9:09 AM), https://www.cbsnews.com/news/rick-pitino-louisville-basketball-coach-bribery-scandal-adidas-ncaa/
[27] Darren Rovell & Ryan Smith, Rick Pitino will fight to be paid his full contract, attorney says¸ Source ESPN (Sept. 28, 2017) http://www.espn.com/mens-college-basketball/story/_/id/20842888/rick-pitino-fight-louisville-pay-full-contract-attorney-says

*Featured image by Adam Glanzman, licensed under CC BY 2.0.

Are Administrative Law Judges Unconstitutionally Appointed?

Are Administrative Law Judges Unconstitutionally Appointed?

Roger K. Morris, Staff Editor[1]

There are 1,792 administrative law judges (ALJs) employed across 34 different federal agencies—five of those judges are employed by the Securities and Exchange Commission (SEC).[2] Those five judges, and their predecessors, have decided thousands of adjudications, and the Supreme Court is likely to take a case as soon as this term that could unravel those decisions, and, potentially, decisions by ALJs across multiple other agencies.[3]

The SEC initiated an enforcement action against Mr. Raymond Lucia for alleged violations of anti-fraud provisions of the Investment Advisers Act.[4] The SEC ordered a public hearing to be conducted by an ALJ.[5] That ALJ issued an initial decision which found liability and imposed sanctions, including a lifetime industry ban of Mr. Lucia.[6] The SEC reviewed the ALJ decision and again found that Mr. Lucia had committed anti-fraud violations and imposed the same sanctions as the ALJ.[7] Mr. Lucia argued that the presiding ALJ was not appointed in accordance with Article II, and, thus, the proceeding had been unconstitutional.[8]

Article II of the Constitution contains what is known as the Appointments Clause which states:

“He (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”[9]

To put it in modern parlance, the President must by the one who selects “all Officers of the United States” unless the mode of appointment is provided elsewhere in the Constitution.[10] Employees or other “‘lesser functionaries’ need not be selected in compliance with the strict requirements of Article II.”[11] The basic issue is whether an SEC judge is an “inferior officer” that must be appointed by the President or just another employee of the SEC? The mode the SEC utilizes to select administrative law judges is not in dispute: a bureaucratic process conducted “by the SEC’s Office of Administrative Law Judges and not by the President.”[12] Therefore, if it is determined that these judges are “officers” defined by Article II then their appointments are invalid because the President did not make them.[13] If that were the case then thousands of SEC adjudications would have been decided by illegitimate ALJs.

What differentiates “employees and lesser functionaries”” from “inferior officers” is that officers exercise “significant authority pursuant to the laws of the United States.”[14] The Supreme Court has addressed once before the issue of inferior officers and employees in Freytag v. Comm’r, Internal Revenue.[15] In that case the Court reviewed the ability of the Tax Court to appoint special trial judges (STJs) and found that STJs were inferior officers because (1) the position was established by law, (2) “the duties, salary, and means of appointment are specified by statute, and (3) the STJs “perform more than ministerial tasks.”[16]

The D.C. Circuit ruled on Mr. Lucia’s arguments in August of 2016 and found that the SEC’s ALJs are not “officers” because “they do not have the power to issue final decisions.”[17]Therefore, the President was not, in the view of the court, needed to appoint SEC ALJs and the SEC ruling about Mr. Lucia was valid. The court used three criteria to make to evaluate the scope of an SEC ALJs authority and whether or not the judge performed more than ministerial duties pursuant to Freytag: (1) the significance of the matters before the judges, (2) the discretion used in reaching a decision, and (3) the finality of their decisions.[18] The third factor was the deciding one.

In the court’s view, the decisions rendered by SEC ALJs are not final because the statute reserves to the Commission “‘a discretionary right to review the action of any’ ALJ as it sees fit.”[19] The decisions by SEC ALJs, in the view of the D.C. Circuit, are no more than “recommended decisions” that require the SEC to affirmatively act on every case by issuing an order on whether or not to review.[20] Only when the SEC decides not to review or upholds the ALJ’s decision does the ALJ’s decision become final.[21] That lack of finality, in the view of the court, was dispositive and indicated that SEC ALJs do not perform more than ministerial tasks. Because the ALJs only perform ministerial tasks, the court reasons, they are to be considered employees of the SEC and not officers of the United States. In the view of the court, the STJs in Freytag, in at least some cases, had the authority to issue final decisions, and so they exercised enough authority to be officers requiring Presidential appointment.[22] In June, the D.C. Circuit reviewed this decision en banc and split 5-5.[23]

The Tenth Circuit reviewed a similar issue regarding SEC ALJs but reached the opposite conclusion: SEC ALJs are constitutional officers and their appointments contravene the Constitution.[24] The court in Bandimere v. Sec. & Exch. Comm’n concluded that the finality of decisions was meant to be only one factor in determining whether someone is an inferior officer or an employee.[25] The court felt that the SEC ALJs were no different than the STJs in Freytag.[26] The court used the three Freytag factors and found: (1) the SEC ALJs are established the law through the Administrative Procedure Act and Securities and Exchange Act of 1934, (2) the statute establishes their duties, salaries, and means of appointment, and (3) the ALJs “exercise significant discretion in performing ‘important functions.’”[27] The finality of decisions was considered relevant in determining whether significant authority is exercised, but that was not found to mean that “every inferior officer must possess final decision making power.”[28] SEC ALJs take testimony, regulate document production and deposition, rule on the admissibility of evidence, receive evidence, rule on motions, issue subpoenas, preside over trial-like hearings, and make findings which the SEC considers with great weight during agency review.[29] Despite the lack of finality that prevented the D.C. circuit from finding that SEC ALJs were officers, the Tenth Circuit found that the total authority these ALJs was enough to find that SEC ALJs possess “significant authority” greater than ministerial duties and should be considered “inferior officers.”[30]

This past month the Fifth Circuit deepened the circuit split by joining the Tenth Circuit in concluding that a plaintiff was likely to succeed on a claim challenging the constitutionality of ALJs serving the Federal Deposit Insurance Corporation (FDIC).[31]FDIC ALJs also possess a similar lack of finality in their decisions, but the court held that was not dispositive.[32] Much like SEC ALJs, FDIC ALJs conduct trials, rule on evidence, and preside over trial-like hearings.[33] These powers are “more than ministerial tasks.”[34] The Freytag factors, the court indicated, suggest that FDIC ALJs are constitutional officers that should be appointed by the President.[35]

Following the recent en banc decision, Mr. Lucia has filed a petition asking for Supreme Court review and many experts think that the Court is likely to take up this issue in the coming term, especially considering the Fifth Circuit’s recent opinion.[36]Currently, the Circuits that have found ALJs unconstitutional have called into question all prior adjudications by those judges and current administrative processes.[37] Considering the important role the administrative state plays in government and commerce, immediate clarification is needed by the Supreme Court. If that were to happen, thousands of administrative adjudications could be at stake. Depending on the breadth of that potential decision, not only could the SEC be affected, but also other agencies that appoint their ALJs in similar fashion and given those judges similar authority like the FDIC.

[1] J.D. expected May 2019
[2] Carmen Germaine, Circuits Split Widely on SEC Judges’ Constitutionality, Law360 (Jan. 3, 2017, 10:31 PM), https://www.law360.com/articles/876758/circuits-split-widely-on-sec-judges-constitutionality.
[3] Sarah A. Good & Laura C. Hurtado, Constitutionality of SEC’s Administrative Law Judges Headed to Supreme Court?, Harvard Law School Forum on Corporate Governance and Financial Regulation (Jan. 9, 2017), https://corpgov.law.harvard.edu/2017/01/09/constitutionality-of-secs-administrative-law-judges-headed-to-supreme-court/.
[4] Raymond J. Lucia Companies, Inc. v. Sec. & Exch. Comm’n, 832 F.3d 277, 282 (D.C. Cir. 2016).
[5] Id at 282-83.
[6] Id at 283.
[7] Id.
[8] Id.
[9] U.S. Const. art. II, § 2, cl. 2 (emphasis added).
[10] Lucia, 832 F.3d at 283 (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976)).
[11] Id at 284 (citing Freytag v. Comm’r, Internal Revenue, 501 U.S. 868, 880 (1991)).
[12] Good & Hurtado, supra note 3.
[13] Sarah A. Good & Laura C. Hurtado, Have SEC ALJs Been Operating Contrary to the U.S. Constitution?, Harvard Law School Forum on Corporate Governance and Financial Regulation (July 12, 2017), https://corpgov.law.harvard.edu/2017/07/12/have-sec-aljs-been-operating-contrary-to-the-u-s-constitution/.
[14] Id.
[15] Bandimere v. Sec. & Exch. Comm’n, 844 F.3d 1168, 1174 (5th Cir. 2016) (citing Freytag, 501 U.S. at 880-82)).
[16] Freytag, 501 U.S. at 870 and 881-82.
[17] Alison Frankel, SCOTUS petition claims Justice memo is smoking gun on SEC ALJs, Reuters (July 24, 2017, 3:09 PM), https://www.reuters.com/article/us-otc-alj/scotus-petition-claims-justice-memo-is-smoking-gun-on-sec-aljs-idUSKBN1A92E4.
[18] Lucia, 832 F.3d at 284 (citing Tucker v. Comm’r, Internal Revenue, 676 F.3d 1129, 1133 (D.C. Cir. 2012)).
[19] Id at 285.
[20] Id at 287.
[21] Id.
[22] Id at 285.
[23] Raymond J. Lucia Companies, Inc. v. Sec. & Exch. Comm’n, 868 F.3d 1021 (D.C. Cir. 2017) (en banc).
[24] Bandimere, 844 F.3d at 1188.
[25] Germaine, supra note 2.
[26] See id.
[27] Id at 1179.
[28] Id at 1184.
[29] Id at 1179-80.
[30] Id at 1188.
[31] Jack Newsham, More Trouble for ALJs Brewing in 5th Circ. FDIC Challenge, Law360 (Sept. 8, 2017, 3:37 PM), https://www.law360.com/articles/961888/more-trouble-for-aljs-brewing-in-5th-circ-fdic-challenge.
[32] Burgess v. Fed. Deposit Ins. Corp., No. 17-60579, 2017 WL 3928326, at 4 (5th Cir. Sept. 7, 2017).
[33] See id at 3 (citing Freytag, 501 U.S. at 881-82).
[34] Id at 3 (citing Freytag, 501 U.S. at 881).
[35] Id at 2.
[36] Alison Frankel, New 5th Circuit decision on ALJ constitutionality adds urgency to SCOTUS bid, Reuters (Sept. 12, 2017, 3:15 PM), https://www.reuters.com/article/us-otc-alj/new-5th-circuit-decision-on-alj-constitutionality-adds-urgency-to-scotus-bid-idUSKCN1BN2P2.
[37] Sarah A. Good & Laura C. Hurtado, Circuit Split Cries Out for Supreme Court Review, Pillsburylaw.com (June 29, 2017), https://www.pillsburylaw.com/en/news-and-insights/sec-alj-supreme-court-review.html.

*Featured image by Scott S, licensed under CC By 2.0