Monthly Archives: August 2016


Menominee Tribe v. United States: Equitable Tolling (01/25/16)

Menominee Indian Tribe of Wisconsin v. United States

Should the Court of Appeal’s decision that equitable tolling does not apply to the presentment of the petitioner’s claims be affirmed?

Argued: 12/1/15

Decision Date: 01/25/16

Decision Record: 9-0; yes

Justices in Favor: John Roberts (RC*), Samuel Alito (R), Anthony Kennedy (LC), Ruth Bader Ginsburg (L), Stephen Breyer (L), Sonia Sotomayor (L), Elena Kagan (LC), Clarence Thomas (R)

Justices Dissenting: None


Effect of the Decision:

Equitable tolling cannot be used to reserve contract claims that are not timely presented within the statute of limitations.


In Favor:

Representing the United States, attorney Ilana Eisenstein argued, “The Tribe made a strategic calculation here to allow the six-year CDA statute of limitations to pass, because it wanted to monitor the litigation by other tribes, rather than file and pursue its own action. The miscalculation that it made about whether the clear deadline could be extended by class action tolling, that was a routine litigation mistake, the kind that is far from the sort of extraordinary circumstance that could warrant equitable relief.

Nor did that miscalculation prevent the Tribe from filing earlier.

To the extent that there was uncertainty as to whether it was a member of the Cherokee Nation class, and whether presentment was a jurisdictional bar to that class membership, the prudent course, and any reasonably diligent litigant would have filed under the clear deadline, rather than wait for the uncertain application of tolling and the potential forfeiture of its claims.”


In the opposing side of the presented question, the Menominee Indian Tribe of Wisconsin’s attorney, Geoffrey D. Strommer stated, “The facts in this case are very complex, but the legal question that is presented to you today is relatively straightforward to state.

And the legal question is whether or not an individual or an entity that reasonably relies on class-action tolling can, if tolling is found to be ineffective at a later date, then rely on the same facts to argue that equitable tolling under Holland should apply. In the Irwin case, this Court specifically cross-referenced American Pipe as an example of a defective pleading that could satisfy equitable tolling. American Pipe obviously being a class-action tolling rule. We read that cross-reference as a suggestion that, under the right circumstances, if somebody reasonably relies on class-action tolling facts that ultimately prove to be ineffective, that that individual has the ability to ask the Court to find that equitable tolling should apply. If there is such a case, the facts of this case really should satisfy this test. The test is set forth in the Holland case. Due diligence and extraordinary circumstances are the two prongs that have to be satisfied.”


In the majority opinion paper, written by Justice Alito, he wrote: “The Tribe argues that diligence and extraordinary circumstances should be considered together as factors in a unitary test, and it faults the Court of Appeals for declining to consider the Tribe’s diligence in connection with its finding that no extraordinary circumstances existed. But this Court has expressly characterized these two components as “elements,” not merely factors of indeterminate or commensurable weight, Pace v. DiGuglielmo, 544 U. S. 408, 418, and has treated them as such in practice, see Lawrence v. Florida, 549 U. S. 327, 336–337. The Tribe also objects to the Court of Appeals’ interpretation of the “extraordinary circumstances” prong as requiring the showing of an “external obstacle” to timely filing. This Court reaffirms that this prong is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.

None of the Tribe’s excuses satisfy the “extraordinary circumstances” prong of the test. The Tribe had unilateral authority to present its claims in a timely manner. Its claimed obstacles, namely, a mistaken reliance on a putative class action and a belief that presentment was futile, were not outside the Tribe’s control. And the significant risk and expense associated with presenting and litigating its claims are far from extraordinary. Finally, the special relationship between the United States and Indian tribes, as articulated in the ISDA, does not override clear statutory language.”

My Opinion:

In this case, I concur with the Supreme Court’s decision. The Menominee Indian Tribe of Wisconsin weakly argued that they were aware of their situation, however they did not think bringing the case to court would make a difference, and therefore their statute of limitation did not begin. I strongly disagree with this because the statute of limitation clearly states that it begins to run the moment you are aware of the situation. The Menominee Tribe became cognizant at the time of the contract signing, meaning their time was already running. Merely believing that your case would not have an impact in court does not conflict or have anything to do with the statute. The decision of whether or not they wanted to take their case to court, or not, was theirs. The Menominee Indian Tribe were still aware of their case nevertheless.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Betterman v. Montana: No Speedy Sentencing Guarantee (05/19/16)

Betterman v. Montana

Should the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution and guarantee a speedy sentencing?

See Sixth Amendment for more.

Argued: 03/28/16

Decision Date: 05/19/16

Decision Record: 8-0; no

Justices in Favor: None

Justices Dissenting: John Roberts (RC*), Samuel Alito (R), Anthony Kennedy (LC), Ruth Bader Ginsburg (L), Stephen Breyer (L), Sonia Sotomayor (L), Elena Kagan (LC), Clarence Thomas (R)


Effect of the Decision:

It clarifies the meaning of the Sixth Amendment to only cover the speedy trial, and the beginning of the trial process. It does not extend to the penalty phase.


In Favor:

On the side of Mr. Betterman, attorney Fred A. Rowley Jr. argues, “The Speedy Trial Clause applies to a criminal prosecution through its culmination in sentencing”, arguing the sixth amendment of the constitution guarantees a speedy sentencing.

It is not cut off when the defendant pleads or is found guilty.

The Court has said that the clause guarantees an early and proper disposition of a criminal charge, and that guarantee applies to the guilt stage of a prosecution when most defendants plead guilty and to the sentencing stage, which may be the only place in a criminal prosecution today when a defendant actually mounts a defense.”

He states that the Sixth Amendment includes the right to both a speedy trial and speedy sentencing.


However on the opposing side, Montana, attorney Dale Schowengerdt says, “The Speedy Trial Clause does not include sentencing delay because its purpose is to protect a presumptively innocent defendant from the harms associated with a criminal charge.

That purpose is consistent with the text in history of the clause. It’s consistent with the remedy that this Court has said must apply to speedy trial violations.

And, importantly, it leaves defendants with other means of challenging unjustified sentencing delay without requiring the court having to modify both the test and the remedy for a speedy trial violation. The Speedy Trial Clause is unique among Sixth Amendment rights because it goes to the heart of the government’s authority to try a presumptively innocent defendant at all.

If the government unjustifiably delays, it may forfeit the right, which is why dismissal is the remedy. Sentencing delay doesn’t impact the validity of trial.”



In the opinion slip on the affirming side, written by Ruth Bader Ginsburg, she wrote, “This understanding of the Sixth Amendment language—“accused” as distinct from “convicted,” and “trial” as separate from “sentencing”—endures today. . . The course of a criminal prosecution is composed of discrete segments. During the segment between accusation and conviction, the Sixth Amendment’s Speedy Trial Clause protects the presumptively innocent from long enduring unresolved criminal charges. The Sixth Amendment speedy trial right, however, does not extend beyond conviction, which terminates the presumption of innocence. The judgment of the Supreme Court of Montana is therefore affirmed” with no right to a speedy sentencing.

My Opinion:

In this case, I agree with the majority side of the opinion. I disagree with the argument that was brought up by attorney Rowley: “The Speedy Trial Clause applies to a criminal prosecution through its culmination in sentencing,” because a trial is what determines whether you’re guilty or not, whereas a sentencing is what decides how long you will stay in jail, after you have been found guilty.

In Betterman’s case, he had already plead guilty, and then after waiting 14 months in jail for a sentencing, he claimed that it was a violation of his Sixth Amendment, which guaranteed a speedy trial and speedy sentencing. Betterman had already completed his trial, and was found guilty, so his Sixth Amendment rights were not infringed.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Voisine v. United States: Reckless Domestic Violence (06/27/16)

Voisine v. United States

Should a reckless domestic assault qualify as a “misdemeanor crime of domestic violence,” taking away their Second Amendment rights as if they have committed a felony?

See 18 U.S.C. § 922(g)(9) for more.  

Decision Date: June 27, 2016

Decision Record: 6-2; yes

Justices in Favor: Elena Kagan (LC*), Samuel Alito (R), Ruth Bader Ginsburg (L), Anthony Kennedy (LC), John Roberts (RC), and Stephen Breyer (L)

Justices Dissenting: Clarence Thomas (R) and Sonia Sotomayor (L)

Effect of the Decision

This case has the effect of possibly unjustly eroding a person’s Second Amendment constitutional right to firearm ownership.

In Favor

The argument in favor, in this case, made by attorney Ilana Eisenstein, claims, “The argument is that this Court should effectuate Congress’s purpose by giving Section 922(g)(9) the meaning that Congress intended, which is to cover generally applicable assault and battery statutes regardless of whether, on a rare instance, they may wrongly end up covering an individual who was perhaps recklessly driving and injured a family member.”


In the opposition, Mr. Voisine, who was represented by attorney Virginia Villa, stated, “The same state of mind should attach to each (bodily injury or offensive touching), and that is why intentionality is the state of mind that under the common law must attach to each. Because intentional battery covered both the offensive physical contact as well as the physical injury, whereas recklessness covers only bodily injury.”


Justice Clarence Thomas, finally breaking his 10-year silence, with regard to reckless domestic assault brought up an argument in favor of Mr. Voisine. He said in his dissent, “The ‘reckless’ standard could result in people forever being denied their constitutional right to firearm for ‘a single conviction for an infraction punishable only by a fine.’”

Then in the opinion paper, he wrote, “The majority decides that a person who acts recklessly has used physical force against another. But that fails to appreciate the distinction between intentional and reckless conduct. A ‘use’ of physical force requires the intent to cause harm.” Justice Thomas, along with Justice Sonia Sotomayor, were the only two justices that sided with Mr. Voisine.

On the other hand, the majority side of the decision, the side of the United States, wrote on the opinion slip, “Several decades earlier, the Model Penal Code had taken the position that a “mens rea” of recklessness should generally suffice to establish criminal liability, including for assault … So in linking §922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct (without intent).”

Then it proceeded to say, “That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.” The majority of the decision included, Justices Kagan, Alito, Ginsburg, Kennedy, Roberts, and Breyer.

My Opinion:

First of all, it’s required that the Supreme Court Justices follow the constitution in making their decisions, however, the majority decision in this case would likely be found unconstitutional if challenged on those grounds. Second of all, § 922(g)(9) states that misdemeanor domestic violent acts are treated as a felony, and felons are already stripped of their constitutional right to own a gun, therefore instead of adding ambiguity to misdemeanor offenses, specific domestic violence cases should be made by felonies to retain clarity. Additionally, whereas misdemeanors are minor offenses that are not granted a jury trial, thus because domestic violence is only a misdemeanor, the person’s Second Amendment rights could be taken away without a jury trial, for something as unintentionally injuring his child in an accident while texting and driving. This should not be allowed as without intent it is not reckless domestic assault.  Thus in order to prevent people from unjustly losing their constitutional rights, the appropriate misdemeanor offenses should be re-classified as felonies.

The law requires the “use of physical force,” and a “use of physical force” requires the intent to cause harm. I agree with what Justice Thomas wrote in his opinion slip: “The majority overlooks the critical distinction between conduct that is intended to cause harm and conduct that is not intended to cause harm.”

For conduct to rise to the level of domestic violence against a family member, it requires intent. The majority’s interpretation of the law is too broad. The intention of the law was to be applied to domestic violence with intent. Consider that recklessly driving and harming a family member unintentionally, would have no relationship to the probability of committing an act of domestic violence or of using a firearm in an improper manner, because there was no intent to harm.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right