Three Opinions And A Grant, Or Peaches,Tasty, And A Frog

As predicted. the Supreme Court handed down opinions today, three of them, one featuring a party thrown by "Peaches" (or maybe "Tasty").  There was also a grant of certiorari that involves a frog.

And you thought the law was boring.

First, the opinions [link to Supreme Court website]:

National Assn. of Mfrs. v. Department of Defense (16-299): the Court held, by a 9-0 vote, that challenges to the Waters of the United States rule must be filed in federal district court, not federal courts of appeal as is allowed for some challenges under the Clean Water Act.  Takeaway: the opinion by Justice Sotomayor solves this jurisdictional issue by statutory interpretation against the very complex background of how "waters of the United States" is defined and administered.  Major case if you do Clean Water Act work, as I did.

Artis v. District of Columbia (16-460): another procedural case, a 5-4 decision, with a majority opinion by Justice Ginsburg, reading Title 28 U. S. C. §1367(d)’s instruction to “toll” a state limitations period while a supplemental state-law claim is pending in federal court means to hold it in abeyance, i.e., to stop the clock.  If this sounds dry, it is, but there are so many cases brought in federal court that involve supplemental state law claims that every federal litigator will need to know this case.  The dissent, written by Gorsuch, made this case into a federalism argument.  An interesting side note: Chief Justice Roberts sided with the majority, clearly not buying into Gorsuch's arguments.

District of Columbia v. Wesby (15-1485) [link to opinion]

You have to read this one.  No, really.  "Peaches" and "Tasty" put in an appearance, plus strippers, condoms, marijuana, loads of alcohol, and a missing bachelor.  If this opinion were a movie, it would be rated "R".

I'll just let Justice Thomas, the author of what was a unanimous opinion (on the police officers' qualified immunity; probable cause to arrest only got 7-2) tell the tale:

     "Around 1 a.m. on March 16, 2008, the District’s 
Metropolitan Police Department received a complaint about 
loud music and illegal activities at a house in Northeast D. C.
The caller, a former neighborhood commissioner, told
police that the house had been vacant for several months...
The officers approached the house and, consistent with
the complaint, heard loud music playing inside.
     After the officers knocked on the front door, they saw a 
man look out the window and then run upstairs. One of
the partygoers opened the door, and the officers entered.
They immediately observed that the inside of the house
“‘was in disarray’” and looked like “‘a vacant property.’”...
The officers smelled marijuana and saw beer bottles and
cups of liquor on the floor. In fact, the floor was so dirty
that one of the partygoers refused to sit on it while being
questioned...In the living room, the officers found a makeshift
strip club. Several women were wearing only bras and thongs,
with cash tucked into their garter belts. The women were
giving lap dances while other partygoers watched. Most of
the onlookers were holding cash and cups of alcohol. After
seeing the uniformed officers, many partygoers scattered
into other parts of the house.  The officers found more debauchery
upstairs. A naked woman and several men were in the bedroom.
A bare mattress—the only one in the house—was on the floor, along with  
some lit candles and multiple open condom wrappers. 
A used condom was on the windowsill. The officers found 
one partygoer hiding in an upstairs closet, and another who had shut 
himself in the bathroom and refused to come out.
     The officers found a total of 21 people in the house.
After interviewing all 21, the officers did not get a clear or
consistent story. Many partygoers said they were there
for a bachelor party, but no one could identify the bachelor.
Each of the partygoers claimed that someone had
invited them to the house, but no one could say who. Two
of the women working the party said that a woman named
“Peaches” or “Tasty” was renting the house and had given 
them permission to be there. One of the women explained
that the previous owner had recently passed away, and
Peaches had just started renting the house from the
grandson who inherited it. But the house had no boxes or
moving supplies. She did not know Peaches’ real name.
And Peaches was not there.
     An officer asked the woman to call Peaches on her
phone so he could talk to her. Peaches answered and
explained that she had just left the party to go to the
store. When the officer asked her to return, Peaches
refused because she was afraid of being arrested. The
sergeant supervising the investigation also spoke with
Peaches. At first, Peaches claimed to be renting the house
from the owner, who was fixing it up for her...[but then]
she admitted that she did not have permission 
to use the house. 
     [The owner] confirmed that he had not given Peaches
(or anyone else) permission to be in the house—let alone permission 
to use it for a bachelor party. At that point, the officers arrested 
the 21 partygoers for unlawful entry....16 of the 21 partygoers, 
sued the District and five of the arresting officers. They sued 
the officers for false arrest under the Fourth Amendment... They sued the 
District for false arrest and negligent supervision under District law. 
The partygoers’ claims were all “predicated upon the allegation that [they] 
were arrested without probable cause.” 

(Citations omitted, emphasis added).  I guarantee you'll not read a Supreme Court opinion quite like this one.  (And if you're interested in the law of qualified immunity for police officers, read the cases cited in the opinion: that area of the law went nowhere.  What would otherwise be a municipal court case got all the way to the Supreme Court because the DC Court of Appeals got it wrong). 

The grant: 17-71  Weyerhauser v. United States Fish and Wildlife Service

Meet the dusky gopher frog, who will star (well, sort of) in what may well be the first case argued in October.

Let's let our friend Amy Howe of SCOTUSblog tell us the story:

"The star of Weyerhaeuser’s case is the dusky gopher frog, an endangered species that can only survive in a habitat that meets several specific criteria – including, for breeding, small temporary ponds in a forest where the tree tops are relatively widely spaced. The legal dispute now before the court arose when the FWS [Fish and Wildlife Service] designated over 1500 acres of privately owned forest in Louisiana as a “critical habitat” for the frog, which would stand in the way of plans to develop the land, at a cost of up to $34 million. The sticking point is that the dusky gopher frog doesn’t live on the designated land, which doesn’t meet all of the criteria for its survival, and hasn’t been seen there in over 50 years. The landowners’ challenges to the designation failed in the lower federal courts, but now the Supreme Court has agreed to decide two questions presented by the landowners: whether the Endangered Species Act allows an agency like FWS to designate private land as a critical habitat when it is neither a habitat nor critical; and whether courts can review the agency’s decision not to exclude an area from the designation of a critical habitat because of the economic effects of designation."

Or as Weyerhauser said in it's filing: "The frog does not live there, cannot live there, and will not live there in the future".  The government's response is that they are trying, in effect, to create a habitat in which the frogs can live, because the natural habitats have been severely diminished, focusing on factors that cannot be reproduced through human efforts, in this case, ephemeral ponds, and making up for the rest to create a habitat.

That's all the Suprme Court news for now.  The next Supreme Court conference day is not until February 16, although there may be some action relating to Travel Ban 3.0 and the DACA case.  Rest assured I'll keep you posted.


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