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When Montana-based District Judge Richard Cebull drew criticism for forwarding a racist joke from his government email account, he asked the Ninth Circuit Court of Appeals to conduct an investigation to determine if his actions should be considered judicial misconduct. That’s because the judicial misconduct proceedings clearly define how the federal courts can address district and circuit judges’ questionable antics. There’s no similar guide for Supreme Court shenanigans. Rep. Louise Slaughter wants to see that change....

Retroactivity is a hot issue these days. Next Tuesday, the Supreme Court will consider whether the Fair Sentencing Act should be applied retroactively to crack peddlers who committed crimes before the law’s enactment. This week, the Sixth Circuit Court of Appeals considered whether the Supreme Court’s United States v. Santos decision should be applied retroactively in a money laundering appeal. In a bit of bad news for the defendant, the appellate court ruled that Santos applied retroactively, but it wasn’t enough to reverse his conviction....

Convicted murderer Mark Christeson got the rarest of reprieves: a Supreme Court stay blocking his execution (for now). With an execution set for midnight (Wednesday morning), he was spared with just a few hours to go over the dissent of Justices Scalia, Thomas, and Alito. Why the reprieve? The order didn’t elaborate on the reason for the stay, but we covered his case yesterday on our Eighth Circuit blog: Christeson never received federal habeas review because his court-appointed counsel didn’t even meet with him until after the deadline, then filed a late petition, and then spent the next seven years avoiding their own malpractice by continuing to represent him, pressing frivolous timeliness arguments on appeal....

For the second time this week, the Supreme Court has overruled the Second Circuit Court of Appeals. First, it was on the issue of overtime pay for pharmaceutical sales reps. Now, it’s on a test of the Federal Communications Commission (FCC) indecency policy. Thursday, the Supreme Court tossed multiple penalties against ABC and Fox, which were accused of violating FCC indecency rules by broadcasting profanity and nudity. The Court, in an opinion written by Justice Anthony Kennedy, held that, because the FCC failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the indecency policy as applied to these broadcasts was vague....

It’s not often that we come across a Tenth Circuit Court of Appeals case that is largely dedicated to the elements of a contract instead of precedent. Today’s case, Sola Salon Studios v. Heller, is a rare exception. Sola Salon owns salon studios throughout the country, but its operational structure is rather unusual. Sola does not employ beauticians or stylists, and instead contracts with those kinds of professionals to use space that Sola leases from someone else, and allows the professionals to operate their own independent salon studios....

In a union’s petition for review of the NLRB’s determination that it engaged in an unfair labor practice, the petition is denied where: 1) the NLRB had statutory authority to act with only two members, both of whom were part of a three-member group to which the NLRB delegated all of its authority; and 2) the NLRB did not err in concluding that the union committed an unfair labor practice when it insisted that an employee lose his seniority for route bidding purposes because of his prior lack of union participation....

Editor’s Note: This post has been updated with new information regarding the result of Attorney General Ellison’s investigation. Last update: October 30, 2020. The Council on American-Islamic Relations of Minnesota (CAIR-MN) and the League of Women Voters of Minnesota filed suit earlier this month in federal court to prevent a private security company from deploying armed ex-soldiers to polling places in the state. The job posting by Atlas Aegis advertised positions for those with backgrounds in Special Forces to “protect election polls, local businesses and residences from looting and destruction....

Warf v. Bd of Elections of Green County, 09-5265, involved plaintiffs’ 42 U.S.C. section 1983 action claiming unconstitutional disenfranchisement against a county elections board and individuals, alleging that their voting rights under the Fourteenth Amendment were violated by a Kentucky state trial court judgment that declared void all 542 votes cast by absentee ballot in the 2006 General Election for the office of Green County Clerk. US v. Allen, 08-6363, concerned a challenge to a conviction of defendant for drug and firearm related offenses....

Appellate courts have been handing down plenty of new decisions on election laws as the 2012 election season heats up. The catalyst, of course, was the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which lifted campaign spending restrictions to permit corporations and unions to funnel unlimited funds into “electioneering communications.” Citizens United prompted a Seventh Circuit decision last month enjoining a Wisconsin campaign finance law, and a Montana Supreme Court decision last week, upholding that state’s limits on corporate spending in political campaigns....

In plaintiff’s lawsuit against the city of Knoxville alleging that the city’s procedures for citing and levying fines for red-light runners captured on cameras installed at intersections violates the state and federal constitution, district court’s dismissal of plaintiff’s claims is affirmed as the city’s agreement to give her a hearing renders her challenges to the hearing’s procedures unripe. Read Williams v. Redflex Traffic Sys., Inc., No. 08-5545 Argued: June 10, 2009...

A divided en banc Fourth Circuit recently held the Baltimore Police Department’s Aerial Investigation Research (AIR) pilot program violated the Fourth Amendment. The six-month program involved flying planes over the city for 40 hours a week, aimed at battling crime through increased surveillance. Background The plaintiffs, grassroots community activists represented by the ACLU, tried to stop the AIR program before it started. But U.S. District Court Judge Richard D. Bennett denied their motion for an injunction in April 2020....

Indiana governor and Donald Trump running mate Mike Pence did well for himself in this week’s vice presidential debate, if pundits and flash polls are to be believed. But his debate night triumph came on the heels of a stinging legal defeat, as the Seventh Circuit upheld an injunction against his Syrian refugee ban. Pence instituted the ban last year, after the terrorist attack in Paris, directing state agencies to stop funding the resettlement of Syrian refugees....

Solis v. Jasmine Hall Care Homes, Inc., No. 08-15223, involved an action to enjoin violations of the Fair Labor Standards Act, alleging that defendants willfully violated overtime compensation requirements. The court of appeals dismissed defendants’ appeal from partial summary judgment for plaintiff, holding that the partial summary judgment did not constitute a final decision. As the court wrote: “This is an appeal from a partial summary judgment. We dismiss the appeal for lack of jurisdiction under the final decision rule....

Rodriguez v. Wet Ink, LLC, No. 08-1313, involved an employment discrimination suit against plaintiff’s former employer, the court of appeals reversed summary judgment for defendant on the ground that the state anti-discrimination agency’s notice did not trigger the 90-day limitation period for purposes of filing a federal action under Title VII, because nothing in the worksharing agreement between the Colorado Civil Rights Division (CCRD) and the EEOC, or relevant case law, supported defendant’s view that the CCRD could issue right-to-sue notices on behalf of the EEOC....

Bloate v. US, No. 08-728, involved a drug and firearm possession prosecution. The Eighth Circuit affirmed the district court’s denial of defendant’s motion to dismiss the indictment on Speedy Trial Act grounds. The Supreme Court reversed, holding that the time granted to prepare pretrial motions was not automatically excludable from the 70-day limit under 18 U.S.C. section 3161(h)(1), and such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7)....

The parties to the case didn’t want en banc review. Other non-parties (California Attorney General Kamala Harris and the Brady Campaign) wanted en banc but were denied leave to intervene, because they were non-parties who waited years to jump on board to the case when they could’ve been part of the case all along. But not to worry, firearm fearers: En banc is still a strong possibility. Despite nobody with a stake in the case calling for it, at least one of the circuit’s many judges called for en banc review sua sponte (H/T to The Volokh Conspiracy....

Drug companies across the world are racing to develop a COVID-19 vaccine that will hopefully allow us to resume normal activities, and some are already conducting late-stage clinical trials on tens of thousands of healthy people. But hopes for an end-of-the-year miracle took a bit of a hit this week as drugmaker AstraZeneca announced that it paused its clinical trial because of a “single event of an unexplained illness” in a trial participant....

A recently filed wage-suppression class action against the burger franchiser Carl’s Jr. claims that the company has conspired to suppress the wages of their restaurant managers and shift-leaders. The gist of the lawsuit alleges that the agreements entered into by the franchisees contain no-hire and non-solicitation agreements which prevents the managers from being able to compete in the marketplace for their services. The putative class action complaint alleges that the company required these agreements “for the express purpose of depressing and/or reducing market-based wages and benefits increases....

In an appeal from the district court’s order granting petitioners’ motion to stay arbitration in a dispute arising under a collective bargaining agreement, the order is affirmed where the underlying dispute between petitioners and respondent union was jurisdictional, and the collective bargaining agreement at issue expressly provided that jurisdictional disputes were not subject to arbitration. Read Constr. Indus. Employers Ass’n v. Local Union No. 210, No. 08-4647 Appellate Information Argued: September 2, 2009...

Full disclosure: Arthur Anderson in today’s Sixth Circuit Court of Appeals case is not the former accounting giant. Instead, this Arthur Anderson is a Michigan drug runner who appealed the dismissal of a motion to suppress a car search that yielded heroin. Police stopped Arthur Anderson approximately four hours after they discovered that he was violating state license-plate regulations. Because they suspected he was involved in a drug operation, they used the interim time for surveillance....