Contempt of court?

Seriously - is this contempt of court?

If you watch just one twitter video today, make it this one, if only for the reaction of Brice Rhodes' attorney after he suggests the judge is having sex with the prosecutor. And then accuses judge of being in KKK. pic.twitter.com/k0Saf2kEwa

— Jason Riley (@JasonRileyWDRB) March 10, 2020

The Plenary Power Meets the Police Power: Federalism at the Intersection of Health & Immigration by Wendy E. Parmet :: SSRN

As we face a global health crisis the Trump administration seeks to block immigration, and to penalize those who seek medical attention or other public support the contradictions grow increasingly acute.  States are the traditional locus of the "police power" - the general duty to provide for the health and welfare of the populace.  But the Trump administration seeks to punish the states if they refuse to cooperate with the federal scheme of accelerated deportation.

Wendy Parmet explores the issues. - GWC

The Plenary Power Meets the Police Power: Federalism at the Intersection of Health & Immigration by Wendy E. Parmet :: SSRN

Northeastern University - School of Law

Date Written: January 23, 2020

Abstract

The regulation of immigration has traditionally been considered an exclusive federal function, over which the elected branches have so-called plenary power. In contrast, the protection of public health has long been viewed as falling primarily within the purview of the states’ police power. These two long-standing, but never fully followed, tenets of federalism are increasingly in tension as so-called Blue States seek to expand non-citizens’ access to health benefits, while the Trump Administration institutes a series of immigration restrictions that will deter non-citizens from utilizing health benefits or accessing health care. This paper explores this tension, focusing in particular on the federalism implications of the Administration’s public charge rule. Part One of the paper discusses the doctrinal foundations for the federal government’s exclusive and plenary power over immigration, as well as the state’s primary responsibility over health. Part Two problematizes the notion of separate spheres, and looks at the overlapping and contested relationship between the federal government and the states with respect to immigration, health, and especially immigration policies that relate to health. Part Three discusses the values, including self-governance, accountability, and separation of powers, that are salient to determining the appropriate scope of federal and state action at the intersection between health and immigration. The paper concludes by arguing that these values, as well as a regard for public health, should lead courts to reject an expansive application of the plenary power doctrine when a President’s immigration initiatives impede state health policies.

Keywords: health, immigration, police power

Symposium: Justices to tackle disputes over access to Trump financial records - SCOTUSblog

Symposium: Justices to tackle disputes over access to Trump financial records - SCOTUSblog

by Amy Howe

During the 2016 presidential campaign, then-candidate Donald Trump famously refused to release copies of his tax returns – a departure from the practice of nearly all major-party candidates in recent decades – and he has continued to decline to do so since then. But on March 31, the Supreme Court will hear oral argument in a trio of cases arising from efforts by a New York grand jury and congressional committees to gain access to the president’s financial records. The court’s ruling could be significant not only for Trump and his businesses, but also for the presidency more broadly.

The first two cases slated for argument on March 31, Trump v. Mazars USA and Trump v. Deutsche Bank, involve subpoenas issued by congressional committees. In the Mazars case, the House Committee on Oversight and Reform issued a subpoena in April 2019 to Mazars, the president’s longtime accounting firm, for financial records relating to Trump and his businesses. The committee said that it wanted the documents as part of its investigation into the adequacy of current government ethics laws.

Trump asked a federal district court in Washington to bar Mazars from complying with the subpoena, arguing that the committee’s investigation into his finances does not serve the kind of legitimate legislative purpose that the Supreme Court’s cases require. The district court rejected that argument, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

KEEP READING

Segregation at all costs: Birmingham, Alabama 1963

Bull Connor - segregation at all costs 1963 - documentary video

Trump v. Mazars briefs

An impressive array of amicus briefs from across the ideological spectrum were filed this week in the #Mazars and #DeutscheBank cases at #SCOTUS, in support of the power of Congress to get information pursuant to its investigations. Scroll through this thread to learn more!

— CAC (@MyConstitution) March 6, 2020

3rd Circuit Restores Uber drivers class action

One of the many potholes of the "gig economy" is that the "independent contractor" label is a tool to avoid what remains of legislative protection of workers rights.  Prime among those rights are workers compensation benefits, employer health insurance plans, and the wage and hour laws mandating minimum wages and premium overtime pay. In the atomized workplace of the "world wide web" the independent contractor scheme must be fought in the courts and the legislatures.  California's Assembly Bill 5 is of course the cutting edge.
The United States Court of Appeals for the Third Circuit - which last year refused to enforce a mandatory arbitration clause for Uber drivers - has now taken the next step.
In a precedential opinion Judge Joseph Greenaway, for a unanimous panel, has reversed a grant of summary judgment in the putative class action Razak v. Uber Technologies, Inc. Drivers for Uber, while online, cannot respond to calls from other apps, the court notes.  It further explains that there is much in the record to support the argument that drivers relying on the UberBLACK app are subject to the online giant's control:

“The district court, in this case, ruled that this factor strongly favored independent contractor status because drivers could be strategic in determining when, where, and how to utilize the Driver App to obtain more lucrative trip requests and to generate more profits,” Greenaway said. “Plaintiffs could also work for competitors and transport private clients. However, other material facts reveal that there was and still is a genuine dispute. For example, Uber decides (1) the fare; (2) which driver receives a trip request; (3) whether to refund or cancel a passenger’s fare; and (4) a driver’s territory, which is subject to change without notice.”

For this and other reasons summary judgment was improperly granted - as there is a substantial factual dispute. The 3rd Circuit therefore vacated the summary judgment and remanded the case to the trial court. - gwc

Gorsuch Decision on Arbitration Could Open Courthouse Doors for More Workers

Gorsuch Decision on Arbitration Could Open Courthouse Doors for More Workers

NJ Law Journal Editorial comment on New Prime v. Oliveira

High Court Weighing State Arbitration Law's Effect on Wage Claims by FAA-Exempt Truckers | New Jersey Law Journal

The workers here are bringing Fair Labor Standards Act wage and hour claims.  The putative classes of truckers is faced with a mandatory arbitration clause - a far less desirable venue generally than a judicial forum.  In a twist on the usual stance - where workers are trying to escape the reach of the Federal Arbitration Act - plaintiffs here argue that it applies - and preempts the New Jersey Arbitration Act.  Because the FAA does not extend to transportation workers (and perhaps more - See New Prime) plaintiffs counsel argues that it exempts such workers from mandatory arbitration, contrary to the Appellate Division in Colon v. Strategic Delivery Solutions.

In the second case Arafa v. Health Express the Appellate Division refused to enforce an arbitration clause which declared it was based on the FAA - which excludes transportation workers whether direct employees or independent contractors (see NJ Law Journal editorial commentary on New Prime).



But as Justice Jaynee LaVecchia suggested during argument the FAA exclusion simply leaves New Jersey free to make its own law.  And the New Jersey Act does - it permits collectively bargained mandatory arbitration.  But it does not bar such provisions for non-union workers.

The plaintiff trial lawyers organization the New Jersey Association for Justice takes a position better grounded in New Jersey law: that their was no meeting of the minds, no informed consent to losing one's right to go to court rather than arbitrate. The Arafa facts seem to be the better fit for that argument.  - GWC

High Court Weighing State Arbitration Law's Effect on Wage Claims by FAA-Exempt Truckers | New Jersey Law Journal

by Suzette Parmley

Does the Federal Arbitration Act, including its exemption of workers in interstate commerce, preempt the New Jersey Arbitration Act?

That question is at the heart of arguments presented before the New Jersey Supreme Court on Monday in a pair of cases that yielded recent conflicting rulings, Colon v. Strategic Delivery Solutions and Arafa v. Health Express Corporation.

Ravi Sattiraju, an employment attorney in Middlesex County who represents the plaintiffs in both Colon and Arafa, presented first in Colon, where truck drivers are asserting wage-and-hour claims.

”This court has held that a fundamental tenet of contract law is that courts will not make a different or better contract than the parties themselves have seen fit to enter into,” Sattiraju said in his opening remarks. “In this case, that is exactly what the Appellate Division did by inserting the FAA into this agreement. They do not like the result of application of the FAA so they are trying to impose a different law that was not agreed upon.”

The Appellate Division, in a published ruling on June 4, 2019, sent the Colon v. Strategic Delivery Solutions case back to a trial court for a determination on whether the plaintiffs were engaged in interstate commerce and therefore exempt from arbitration under §1 of the FAA. The panel in Colon said that though the FAA doesn’t apply, the New Jersey Arbitration Act applies and requires arbitration.

Sattiraju told the justices: “They [the panel] are trying to rewrite the contract because they don’t like the result.

“It’s not that the FAA doesn’t apply. It’s that the FAA does apply and its terms specify that this category of workers cannot arbitrate their claims,” Sattiraju said. “Companies do not like the result so they want to rewrite this contract to invoke the NJAA, which they argue will provide for arbitration as they seek.”

An amicus, the New Jersey Association for Justice, argued in support of the plaintiffs in both cases, represented by William D. Wright of the Wright Law Firm in Stafford Township.

“This court should not find mutual assent where there was none,” Wright said. “To substitute different governing laws and rewrite the parties’ agreement because it is more fundamentally desirable to do so runs afoul of our longstanding general contract jurisprudence,” Wright said.

“Under the limited facts of this case, the FAA conflicts with and therefore preempts the NJAA,” Wright said.

Trump cannot block tax records - Boston U Law Profs file amicus brief

BRIEF OF BOSTON UNIVERSITY SCHOOL OF LAWPROFESSORS SEAN J. KEALY AND JAMES J. WHEATONAS AMICI CURIAE IN SUPPORT OF RESPONDENTS

The thought ran through my mind as I read Donald Trump complaint against the New York District Attorney's subpoena to his accountant firm Mazars.  How does Trump claim that these records Cyrus Vance seeks are in fact his? Trump is the sole plaintiff - but he lists as Parties a string of LLC's, Trusts, and Corporations of which is variously the sole ultimate owner, beneficiary, managing member, and ultimate majority owner.   Boston University Law Profs Sean Kealy and James Wheaton develop the argument - the entities are distinct from Trump.  In his strange complaint he asserts his personal interests and the interests of the office of the President of the United States of America.

Donald Trump has claimed the tax benefits and the immunity from liability that the corporate and LLC forms has given him.  He as an individual is distinct from the companies he owns and controls.  Having claimed the legal benefits - of, for example the bankruptcy laws - he is estopped from claiming he is identical to them.  His business own those records.  The companies don't have the privacy interests that a natural person does.  It's a matter of state law.

Wheaton and Kealy develop their argument in this way:
MOST RECORDS SUBJECT TO THE GRAND JURY SUBPOENA ARE NOT PETITIONER’S RECORDS AT ALL ................................................ 4 A. The Covered Entity Records Subject to the Subpoena Do Not Belong to Petitioner ........................................................... 6 1. State Law Governs Ownership of the Records, and the Records of the Covered Entities Are Not Petitioner’s.... 7 2. The Covered Entities Are Legal Persons Distinct from Petitioner, and Petitioner Has No Right to Assert Claims That Belong Solely to the Entities .......................................... 11 3. Having Consistently and Aggressively Benefitted from His Legal Separation from the Covered Entities, Petitioner Should Not Now Be Permitted to Ignore Their Separateness .................a. In Other Proceedings, Petitioner Has Affirmatively Asserted the Separate Status of the Covered Entities as a Shield, and Explicitly Denied That the Entities are His “Alter Ego” ........................................... 13 b. Petitioner Has Used the Separate Status of the Covered Entities to Benefit from the Federal Bankruptcy System ................................................. 16 c. Petitioner Has Received Presumed Tax and Financial Benefits from Asserting and Maintaining the Separateness of the Covered Entities .... 17

Trump is not immune like a monarch - Former GOP Congress Members, Officials Brief Say in Trump Finance Records Case

BRIEF OF AMICI CURIAE FORMER REPUBLICANMEMBERS OF CONGRESS, FORMER MEMBERSOF THE EXECUTIVE BRANCH UNDERREPUBLICAN ADMINISTRATIONS, AND LEGALEXPERTS IN SUPPORT OF RESPONDENT

Donald Trump has claimed "absolute immunity" from investigation for misconduct by New York County District Attorney Cyrus Vance, Jr.   Fighting in the Supreme Court to block turning over his tax and financial records, Trump now faces the opposition of former Republican Members of Congress and officials, including two time former New Jersey Governor Christine Todd Whitman.
The President raised the prospect of dozens of harassing subpoenaes and even prosecutions if the   Court upholds the Grand Jury subpoena to Trump's accountants to turn over his tax records. 
The brief is well worth reading but here is an excerpt that I thought particularly apt:

 Petitioner’s argument that denying immunity in this case would permit states to control federal government operations is weak. Perhaps for that reason, Petitioner also makes an argument of a very different kind: he argues that criminal proceedings of any sort must be off the table because of the stigma they carry.
This is a deeply troubling argument, and one that again reflects Petitioner’s understanding of the presidency as a sort of royal office. The idea that the president has a distinctive claim to be protected against stigma, over and above the legitimate practical demands of his office, is more suited to the principles of an aristocracy than those of a republic. A king, perhaps, is entitled to be shielded from stigma: the person of the king is sacred in a monarchical system, and the law can be subordinated to protect his honor. But the Constitution knows no principle of lèse-majesté. To argue that the Constitution shields the president from even the suggestion of involvement in criminal wrongdoing because that suggestion might call him into disrepute is to afford him an aristocratic privilege to which no American is entitled.

- GWC