Louisiana Supreme Court Opinions Palowsky v. Campbell et al. Docket: 2018-C-1105 Opinion Date: June 26, 2019 Judge: Per Curiam Areas of Law: Civil Procedure, Government & Administrative Law, Legal Ethics Plaintiffs filed suit against certain judges of the Fourth Judicial District Court (Louisiana) as well as a law clerk employed by that court. Essentially, plaintiffs alleged the law clerk “spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly 'handled’ court documents” in earlier litigation involving plaintiffs, and that the judges either aided or concealed these actions. The judges and law clerk filed motions to strike certain allegations from plaintiff’s petition and also filed exceptions of no cause of action. The district court granted the motions to strike and granted the exceptions of no cause of action. On appeal, a divided en banc panel of the court of appeal reversed the motions to strike in part. The court also reversed the granting of the exception of no cause of action as to the law clerk, but affirmed the granting of the exception of no cause of action as to the judges, finding they were entitled to absolute judicial immunity. Considering the "highly unusual and specific facts" of this case, the Louisiana Supreme Court concluded the court of appeal erred in finding the judges were entitled to absolute judicial immunity. Accepting the facts as alleged in the petition as true for purposes of the exception of no cause of action, the Supreme Court found plaintiff’s allegations regarding the judges’ supervision and investigation of the law clerk’s activities arose in the context of the judges’ administrative functions, rather than in the course of their judicial or adjudicative capacities. Therefore, accepting on the well-pleaded allegations of plaintiff’s petition, the Supreme Court found absolute judicial immunity would not apply, and plaintiff was able to state a cause of action against the judges. Read Opinion
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Louisiana v. Folse Docket: 2018-KK-1518 Opinion Date: June 26, 2019 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law Defendant Kelly Folse, a veterinarian, was charged with aggravated cruelty to animals, and illegal use of a weapon, arising from the allegation she shot her neighbor’s dog in River Ridge. Defendant was arrested and her home was searched pursuant to arrest and search warrants. Her iPhone was seized at the time of her arrest. Access to the phone was locked by a passcode. Police obtained a search warrant to extract and examine the contents of the phone. At some point, she was informed that police had a search warrant for the phone but they would return it to her after she provided the passcode and they extracted a copy of its contents. However, the 10-day period provided in La.C.Cr.P. art. 163(C) had passed at that time. Under circumstances that were not well developed at the evidentiary hearing, defendant ultimately provided her passcode, her data was extracted, and her phone returned to her. Defendant moved to suppress the contents of the phone because the warrant had expired at the time the phone was searched. The district court found that the warrant could not be executed because the 10-day period provided in La.C.Cr.P. art. 163(C) had passed. However, because defendant, with the assistance of counsel, consented to the search by providing her passcode in exchange for the return of her phone, the district court denied defendant’s motion to suppress. The court of appeal held that defendant’s consent to search her phone was not free and voluntary because it was given only after an officer asserted that she had a warrant to search the phone. The Louisiana Supreme Court could not say after review of the trial court record, whether defendant merely acquiesced to a claim of lawful authority, or validly consented to provide her passcode in exchange for the phone. As such, the Court reversed the appellate court's order and remanded to the district court for further findings on whether evidence ought to be suppressed. Read Opinion United States v. Diggles Docket: 18-40521 Opinion Date: June 26, 2019 Judge: Costa Areas of Law: Criminal Law, White Collar Crime The Fifth Circuit affirmed defendants' convictions stemming from their involvement in a fraudulent scheme to collect disaster assistance. Defendant Walter was convicted of conspiracy to commit wire fraud, eleven counts of wire fraud, two counts of theft from a program receiving federal funds, and three counts of money laundering; Defendant Rosie was convicted of the conspiracy count, ten counts of wire fraud, and a money laundering count; and Defendant Anita was convicted of the conspiracy count. The court held that there was sufficient evidence to convict defendants. The court also held that the district court did not misapply a two-level sentencing enhancement under USSG 2B1.1(b)(9)(A) to Rosie's sentence where the offense involved a misrepresentation that the defendant was acting on behalf of a charitable, educational, religious, or political organization, or a government agency. The court vacated the no-new-credit special condition and remanded for the district court to reform the written no-new-credit condition to match the one implied by the oral sentence of restitution. The court also vacated the no-gambling special condition, because it was not so clearly consistent with an oral pronouncement of restitution as to be reasonably encompassed within that pronouncement. The court affirmed the remaining two challenged conditions. Read Opinion Gov. Edwards signs bill forcing restaurants to ID foreign shrimp www.houmatimes.com/news/gov-edwards-signs-bill-forcing-restaurants-to-id-foreign-shrimp/article_9a99fb9a-97a8-11e9-a5d8-9b1577d08393.html Legal sale of CBD products begins in Louisiana www.wafb.com/2019/06/24/la-atc-issues-first-permits-legal-sale-cbd/ US Court of Appeals for the Fifth Circuit Opinions Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar Docket: 16-30984 Opinion Date: June 25, 2019 Judge: James Earl Graves, Jr. Areas of Law: Arbitration & Mediation, Civil Procedure On a second rehearing, the Fifth Circuit certified a question to the Louisiana Supreme Court regarding whether a suit seeking to compel arbitration is an "action for a money judgment" under Louisiana's non-resident attachment statute, La. Code Civ. Proc. art. 3542. The state court answered the certified question and held that Louisiana Code of Civil Procedure article 3542 allows for attachment in aid of arbitration if the origin of the underlying arbitration claim is one pursuing money damages and the arbitral party has satisfied the statutory requirements necessary to obtain a writ of attachment. In this case, the court held that the district court erred in finding that the Louisiana nonresident attachment statute was not available to Daewoo. The underlying action seeking to compel arbitration here was clearly an action for a money judgment under Louisiana's non-resident attachment statute. Read Opinion DA: Public defender who worked on 100+ cases not licensed to practice law in Louisiana wgno.com/2019/06/24/da-public-defender-who-worked-on-100-cases-not-licensed-to-practice-law-in-louisiana/ United States v. Jones Docket: 18-10590 Opinion Date: June 21, 2019 Judge: Jacques Loeb Wiener, Jr. Areas of Law: Criminal Law USSG USSG 2K2.1(b)(4) requires only that one serial number be altered or obliterated on a firearm, even if others are clearly legible. The Fifth Circuit affirmed defendant's sentence after he pleaded guilty to being a felon in possession of a firearm. The court held that the district court did not err by applying a four-level sentencing enhancement under USSG 2K2.1(b)(4), for an altered or obliterated serial number on the firearm. In this case, the metal serial-number plate had been removed from the frame of the handgun, but it had a legible serial number on its side. Therefore, the metal serial number plate altered or obliterated the serial number. Read Opinion The Cost of Choice: Governor to push for changes to Louisiana Scholarship Program www.wafb.com/2019/06/19/cost-choice-governor-push-changes-louisiana-scholarship-program/ Louisiana Governor Asks for Aid After Seafood Industry Slammed by Freshwater Runoff weather.com/news/news/2019-06-19-louisiana-disaster-aid-fisheries US Court of Appeals for the Fifth Circuit Opinions Jones v. Davis Docket: 16-70003 Opinion Date: June 18, 2019 Judge: Higginbotham Areas of Law: Civil Rights, Constitutional Law, Criminal Law The Fifth Circuit treated respondent's petition for rehearing en banc as a petition for panel rehearing and granted it, withdrawing the court's prior opinion and substituting the following. The court affirmed the district court's denial of petitioner's federal application for post-conviction relief and denial of further investigative funding. The court held that no Supreme Court precedent holds that Miranda violations are not subject to harmless-error analysis, and the Court of Criminal Appeals' (CCA) decision to apply harmless-error analysis did not conflict with clearly established federal law. Furthermore, the CCA did not unreasonably apply Chapman v. California. Finally, the district court did not improperly deny petitioner investigative funding under 18 U.S.C. 3599(f) where the district court viewed the request for additional funding as effectively seeking a full retrial of the issues already litigated in the state court. Read Opinion United States v. Arellano-Banuelos Docket: 17-11490 Opinion Date: June 17, 2019 Judge: Stephen Andrew Higginson Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress and held that defendant was not in custody for purposes of Miranda. Considering all the circumstances of the interview and viewing the evidence in the light most favorable to the government, the court held that defendant was not "in custody," because a reasonable inmate in defendant's position would not expect to be required to stay in the office after the termination of the interview. The court also held that the district court did not abuse its discretion in refusing to instruct the jury on a statute of limitations defense where there was no evidence that immigration authorities had actual or constructive knowledge of defendant's presence in the United States. Finally, the court held that defendant's challenge to jury selection was unavailing and defendant failed to show a clear or obvious Confrontation Clause error. Read Opinion Louisiana approves money for civil legal aid, joining most other U.S. states www.nola.com/politics/2019/06/louisiana-approves-money-for-civil-legal-aid-joining-most-other-us-states.html Despite election year, criminal justice revamps cleared Louisiana Legislature, but it wasn't easy www.theadvocate.com/baton_rouge/news/politics/legislature/article_fde890ec-9070-11e9-b653-2b2f359cc44b.html FEDERAL JUDGE: One Louisiana Magistrate can't jail people just because they can't afford bail www.myarklamiss.com/news/state-news/federal-judge-one-louisiana-magistrate-can-t-jail-people-just-because-they-can-t-afford-bail/2077239138 Smith v. Davis Docket: 18-70015 Opinion Date: June 13, 2019 Judge: Priscilla R. Owen Areas of Law: Civil Rights, Constitutional Law, Criminal Law The district court held that the Texas Court of Criminal Appeals' application of Witherspoon v. Illinois and its progeny was unreasonable because the state trial court violated petitioner's constitutional right to an impartial jury under the Eighth and Fourteenth Amendments when it excluded a member of the venire for having moral, conscientious, or religious objections to the death penalty. The State appealed. The Fifth Circuit held that the state court proceedings concerning the exclusion of the member as a juror did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Furthermore, the state court proceedings did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. However, the district court did not give appropriate deference to the TCCA's determination that the trial court did not violate the federal constitution when it removed the member for cause. The court also held that petitioner was not entitled to habeas relief on this claim of ineffective assistance of counsel where, even assuming counsel's performance was deficient, petitioner failed to establish prejudice. Finally, petitioner failed to cite any decision of the Supreme Court holding that the severely mentally ill are ineligible for execution. Accordingly, the court reversed in part to the extent that the district court conditionally granted habeas relief to petitioner on his first claim of relief and otherwise affirmed the judgment. Read Opinion United States v. Garcia-Solis Docket: 18-40307 Opinion Date: June 12, 2019 Judge: Catharina Haynes Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's sentence imposed after he pleaded guilty to one count of conspiring to transport undocumented aliens within the United States and two counts of transporting undocumented aliens within the United States. The court held that the district court did not prohibit defendant from testifying at the sentencing hearing, and did not err by imposing a sentencing enhancement for reckless endangerment. In this case, the enhancement was based on the district court's finding that defendant committed various dangerous traffic infractions, including driving at speeds of up to 100 miles an hour and running a red light, while seeking to evade capture during the transporting of undocumented aliens. Read Opinion More Families of Murder Victims in Louisiana Will Qualify for Financial Help www.themarshallproject.org/2019/06/10/more-families-of-murder-victims-in-louisiana-will-qualify-for-financial-help United States v. Vinagre-Hernandez Docket: 18-50402 Opinion Date: June 7, 2019 Judge: Engelhardt Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's conviction and sentence for aiding and abetting the possession of marijuana in the amount of more than 100 kilograms but less than 1,000 kilograms, with intent to distribute. The court held that the evidence was sufficient to provide a reasonable inference that defendant knew that he was carrying marijuana. The court found no reason to create a new procedural distinction which would not exclude the time spent on the motion for detention, the court held that defendant's Speedy Trial Act claim failed on the merits. Read Opinion Louisiana will have a minimum marriage age after all www.nola.com/news/2019/06/louisiana-will-have-a-minimum-marriage-age-after-all.html Louisiana's fantasy sports, sports betting bills fail in legislative session's final chaotic minutes www.theadvocate.com/baton_rouge/news/politics/legislature/article_48427fc2-88ab-11e9-8a69-23ec1f9b2ade.html Louisiana Lawmakers Reject Bill to Set a Minimum Age for Marriage time.com/5600202/louisiana-minimum-marriage-age-bill/ Louisiana to ban freestanding ERs to protect rural hospitals www.wwltv.com/article/news/politics/louisiana-to-ban-freestanding-ers-to-protect-rural-hospitals/289-d742cd4f-f7bb-4aeb-862e-9a1c4b8e0841 US Court of Appeals for the Fifth Circuit Opinions In re: Raby Docket: 18-20826 Opinion Date: June 4, 2019 Judge: Jerry E. Smith Areas of Law: Civil Rights, Constitutional Law, Criminal Law The Fifth Circuit denied a motion for an order authorizing the filing and consideration of a second-or-successive habeas corpus petition under 28 U.S.C. 2254. Assuming arguendo that movant's claim was not time-barred and he could not have previously discovered the factual predicate for the claim using due diligence, the court held that he could not establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offense. Therefore, movant failed to make a prima facie showing sufficient to warrant authorization for a second-or-successive habeas petition on the ground that the state destroyed exculpatory evidence such that it is no longer available for testing, in violation of California v. Trombetta and Arizona v. Youngblood. The court also rejected movant's claim under Giglio v. United States that the state's forensic serologist falsely referred to exculpatory serological results; claim of a Brady violation, and claim of actual innocence. Read Opinion Statewide Uber, Lyft awaits Louisiana governor’s OK www.nola.com/news/2019/06/statewide-uber-lyft-awaits-louisiana-governors-ok.html |
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