Capitol Hill enters fray over Texas abortion law

(CN) — The Senate Judiciary Committee held a hearing Wednesday over Texas’ new near-total ban on abortion and the means by which the U.S. Supreme Court decided to let it take effect. While Democrats on the committee criticized the law for being unconstitutional, Republicans defended it as a way to effectively end abortion procedures in the Lone Star state

During Texas’ regular legislative session, lawmakers passed Senate Bill 8, the Texas Heartbeat Act. The law bans abortion once a fetal heartbeat is detected, around six weeks of pregnancy, before many women are aware they are pregnant, with no exceptions in cases of rape or incest.

Additionally, the law puts enforcement in the hands of private individuals who can file civil lawsuits seeking up to $10,000 against abortion providers and anyone who “aids and abets” in an abortion procedure. People cannot sue the women who received an abortion but can sue the clinic staff, anyone who drove the woman to the clinic and anyone who pays for an abortion.

In opening statements, Senator Dick Durbin, D-Illinois, called the law dangerous and unconstitutional. “Senate Bill 8 attacks the Supreme Court’s long-established precedent in Roe v. Wade… [and] uses a civil lawsuit, bounty hunter-style enforcement scheme that was designed to insulate the law from judicial review,” said Durbin.

The law took effect Sept. 1 after the U.S. Supreme Court denied an emergency motion to block it. In a 5-4 decision, Chief Justice John Roberts sided with the court’s liberals, calling the law “not only unusual but unprecedented.” The court was able to decide this through the use of the shadow docket, which allows the high court to rule on issues without going through the traditional appeals channels or allowing for oral argument. 

In the case concerning the Texas law, abortion providers petitioned the court for an emergency order after the Fifth Circuit put a hold on proceedings in a similar case. In recent years, the use of the shadow docket has been used more frequently to decide on tense political issues such as Covid-19 restrictions and immigration. 

Reflected in the hearing’s title, “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket,” Democrats on the committee aimed at the seemingly political nature of justices’ decisions in these instances while also asserting that SB 8 profoundly impacts the health and safety of Texas women. Durbin said that because the law violates a women’s constitutional right to an abortion under Roe v. Wade, the law should have been temporarily blocked while proceedings move through the judicial system.

Professor Stephen Vladeck of the University of Texas School of Law told the committee the shadow docket and SB 8 are similar. “In different but powerfully related ways they both have ominous implications for the rule of law,” said Vladeck. Those similarities and implications include a small number of people using their power to drastically reshape the rights of citizens without regard to existing precedent and rule of law. 

“The not so subtle implication is that so long as the court is getting the merits ‘right’ the procedures that the justices follow or the persuasiveness of their explanations simply do not matter,” said Vladeck. 

In declining to block SB 8, the Supreme Court “rewarded” Texas lawmakers for their ability to craft legislation that prevents judicial review, Vladeck testified.

Senator John Cornyn, R-Texas, defended the court’s decision on SB 8 and the use of the shadow docket, asserting that Democrats’ arguments against them are an attack on judicial independence.

“It is clear this is a part of a concerted effort to intimidate and bully the members of the Supreme Court,” said Cornyn.

Senator Ted Cruz, R-Texas, also defended the use of the shadow docket but said the committee hearing and criticism of Texas’ near-total abortion ban were an effort to “demonize” the state. He called Democrats radical and extreme for their proposed legislation to codify abortion rights through the Women’s Health Protection Act, which the House of Representatives passed Sept. 24.

For Texans in need of an abortion, their only option to get one to cross state lines. Clinics in New Mexico, Oklahoma and Louisiana have reported providing services to primarily Texas residents. However, that is just for those with the means to go out of state and to pay for the procedure. 

Texas state Representative Donna Howard, D-Austin, highlighted this in her testimony, saying that for those with the ability to take time off of work and travel, an abortion can be obtained.

“The majority of those who are not able to access an abortion out of the state are going to be those that do not have the resources, this disproportionately impacts women of color,” said Howard. She noted that with the increase of unwanted pregnancies being forced to term — financially burdening Texas families — the result will be a heightened reliance on services such as Medicaid.

The legal fight over the law has continued even after it took effect. The U.S. Department of Justice has filed a lawsuit against the state claiming the law is unconstitutional and should be struck down. A Texas state court has blocked lawsuits against Planned Parenthood clinics across the state, temporarily protecting the providers from enforcement of SB 8 in the meantime. So far, one man who claims to have provided an abortion has been sued by two people who don’t live in Texas, marking the first real test of the new law in Texas courts.

While these legal challenges make their way through the system, Texans continue grappling with the new reality of restricted access to abortion and remain at the center of a deeply partisan conflict.

Follow Kirk McDaniel on Twitter

from Courthouse News

Federal judiciary calls on Congress to add new judgeships in Oklahoma

(CN) — The federal judiciary asked Congress on Tuesday to add five federal judgeships in Oklahoma as courts grapple with an expanded caseload caused by a Supreme Court ruling that shifted prosecutions of Native Americans from state to federal courts.

In a 5-4 order in McGirt v. Oklahoma, the high court held in July 2020 that federal or tribal courts, not state courts, have jurisdiction over cases in which Native Americans are accused of committing crimes on Muscogee (Creek) Nation land in eastern Oklahoma.

The decision was later expanded to the eastern Oklahoma lands of the Cherokee, Choctaw, Chickasaw and Seminole tribes.

It prompted a flurry of post-conviction appeals by other Native American inmates demanding their release from Oklahoma state prisons and forced federal prosecutors to bring their own charges to keep violent criminals behind bars.

The shift in jurisdiction has caused the number of criminal cases to increase more than 400% in the Northern District of Oklahoma, headquartered in Tulsa, and 200% in the Eastern District of Oklahoma based in Muscogee, according to the Judicial Conference of the United States, the policy-making body for the federal court system. The conference consists of 26 judges led by Supreme Court Chief Justice John Roberts.

So the Judicial Conference on Tuesday recommended that Congress authorize three new judgeships for the Eastern District of Oklahoma and two for the Northern District of Oklahoma.

The McGirt decision further complicated operations for Oklahoma federal courts as they, like courts across the country, are dealing with jury trial delays caused by the pandemic.

Doug Horn, senior litigation counsel for the Eastern District of Oklahoma’s U.S. Attorney’s Office, said before McGirt his office would prosecute 100 cases a year.

“In April we did 90. In May we did 84 and of those 56 of them were first-degree murder cases. That gives you sort of an indication of where we’re at,” Horn said in a phone interview.

To keep up with the caseload, Horn said, the Department of Justice added 33 more criminal-case prosecutors to the eight in his district and has also brought in other prosecutors from across the country.

The two federal judges assigned to the Eastern District of Oklahoma are also getting a lot of help.

“They’re bringing in judges from other districts to handle the workload,” Horn said. “There’s been a visiting judge here from Louisiana that has taken a full caseload. There are six judges from Oklahoma City that are coming in to try cases. There was an additional magistrate that came in from Texas to handle some of the initial appearances and detention hearings.”

It’s the same situation in the Northern District of Oklahoma, where Acting U.S. Attorney Clint Johnson said he supports the Judiciary’s request for new judges.

In the the past year, Johnson said, his office has hired 24 prosecutors to deal with the exponential increase of Indian Country cases.

Before the McGirt decision, Johnson’s office prosecuted 240 cases a year. “Currently, we are indicting 50 to 75 cases each month,” he said in an email. He noted he is prioritizing tribal cases involving violent crime and crimes against children.

“We are also working closely with attorneys general from the Cherokee and Muscogee nations as we refer cases to their offices,” Johnson added.

Horn said the FBI has also had to bring in dozens of agents to Oklahoma to keep up with criminal investigations that became the responsibility of the feds thanks to the McGirt ruling.

An Oklahoma state court convicted Jimcy McGirt, a member of the Seminole Nation, of first-degree rape of a four-year-old child in 1997 and sentenced him to two 550-year terms in state prison.

But his counsel successfully argued before the Supreme Court that because Congress never dissolved the Muscogee reservation where the crime took place, Oklahoma lacked criminal jurisdiction in his case.

He never got out of prison.

Weeks after the high court ruled in his favor, federal prosecutors indicted him for the rape. He was sentenced to life in federal prison last month after a jury found him guilty of two counts of aggravated sexual abuse and abusive sexual contact.

Non-Indian defendants arrested on Oklahoma tribal lands can still be prosecuted in state court.

The Judicial Conference’s request Tuesday for five new judgeships in Oklahoma is in addition to 79 new ones they requested of Congress in March.

Leading the conference’s wish list is a request for 15 new permanent judges for the Central District of California. It has also asked Congress to authorize new federal judgeships in Alabama, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, New Jersey, New Mexico, New York, North Carolina and Texas and two appellate judges for the Ninth Circuit.

As of Sept. 1, there were 82 federal court vacancies.

Since taking office in January, President Joe Biden, a Democrat, has nominated 41 people for federal judgeships and the Senate has confirmed 14 of them.

Judicial appointments were a priority for Biden’s Republican predecessor, Donald Trump.

He shifted the Supreme Court to the ideological right with his appointment of Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh, who abortion rights advocates fear are eager to join the court’s other conservatives in rolling back the constitutional right to the procedure. The high court will hear arguments Dec. 1 in a challenge of Mississippi’s ban on abortions after 15 months of pregnancy.

All told, Trump, with the votes of a Republican majority in the Senate, appointed more than 200 judges to the federal bench, an accomplishment experts say will have consequences for decades to come as federal judgeships are lifetime appointments.

 Follow Cameron Langford on Twitter

from Courthouse News

Top eight today

National

Twice denied bail, Proud Boy who smashed Capitol window goes for trifecta

A member of the Proud Boys who smashed a window of the U.S. Capitol building with a stolen police riot shield on Jan. 6 is asking to be released from jail for the third time. His bond review motion has already been denied twice by two different federal judges. 

(Image via Courthouse News)

Cell doors nudge open for rioting sheriff’s deputy who assaulted police at Capitol

Emphasizing the pride that the former sheriff’s deputy took in storming the U.S. Capitol on Jan. 6, prosecutors fought in court Wednesday to overturn release orders from a Tennessee magistrate.

(Image via Courthouse News)

$453M settlements in diabetes drug price-fixing case get tentative OK from judge

A federal judge on Wednesday tentatively approved more than $450 million in settlements with three pharmaceutical giants accused of conspiring to jack up the price of an essential diabetes drug.

(Robert Cohen/St. Louis Post-Dispatch via AP)

Regional

Texas sued over social media censorship law

Two internet trade groups that represent the largest tech companies in America filed a federal lawsuit Wednesday challenging a new Texas law meant to curb censorship of political speech by social media users.

(Martin Meissner/AP)

Newsom signs two bills asserting California’s support of abortion rights

In a reaction against Texas’s recent assault on abortion rights, California Governor Gavin Newsom signed two bills into law on Wednesday, one which will protect patient privacy and the other that seeks to criminalize online threats to abortion doctors and prospective patients. 

(Rich Pedroncelli/AP)

Prison strip-search case pits religious rights against transgender rights

An appeal by a Muslim inmate is testing what Wisconsin considers more important: the inmate’s religious beliefs or a transgender prison guard’s right to be treated the same as his cisgender colleagues.

(Image by Jody Davis from Pixabay via Courthouse News)

Oklahoma lobbies 10th Circuit to revive time limit on stopped trains

Oklahoma asked a 10th Circuit panel on Wednesday to revive a law that banned stopped trains from blocking crossings for more than 20 minutes.

(Image by Zachary Keagle from Pixabay via Courthouse News)

International

Heightened US-China tensions present economic opportunities for Mexico

Mexico has long desired to deepen its economic relationship with China, and the current tensions between that country and the United States may be just the ticket.

(Image by Jorge Carlos from Pixabay via Courthouse News)

from Courthouse News

Oklahoma lobbies 10th Circuit to revive time limit on stopped trains

(CN) — Oklahoma asked a 10th Circuit panel on Wednesday to revive a law that banned stopped trains from blocking crossings for more than 20 minutes.

The Sooner State passed the Blocked Crossing Statute in 2019 after stopped trains prevented EMTs and firefighters from responding to calls and encouraged pedestrians to unsafely hop between parked cars.

BNSF Railway Company sued the cities of Edmond and Davis, Oklahoma, after being fined for violations, saying federal law preempted the state from regulating train operations. A federal judge sided with the train operator in November 2020.

The state of Oklahoma appealed, claiming the Federal Railroad Safety Act allows the state to regulate issues of railroad safety.

“If all the other courts have held that the Interstate Commerce Commission Termination Act preempts blocked crossing laws, why shouldn’t we be taking those decisions seriously?” asked U.S. Circuit Judge Gregory Phillips, a Barack Obama appointee, at a hearing Wednesday. “Are you just saying they’re all wrong?”

Oklahoma Assistant Solicitor General Bryan Cleveland pointed to a circuit split on interpretation.

“I’m saying that the statutory interpretation by other circuits is different and that they all rely on a finding that these two statutes are incompatible,” Cleveland said, referring to the Federal Railroad Safety Act and the Interstate Commerce Commission Termination Act.

U.S. Circuit Judge Joel Carson, a Donald Trump appointee, asked whether blocked crossings are an issue of safety or operations.

“What do you do when you run headlong into a situation like this, maybe blocked crossings do have an impact on safety issues, but they also impact operations,” Carson asked. “One of them is going to have to give at some point.”

Cleveland suggested companies like BNSF should build the infrastructure needed to support longer trains without blocking community traffic.

“The Federal Railroad Safety Act specifies that railroad safety reaches every area of operations,” Cleveland said. “Which means inevitably safety issues do affect operations. There’s a narrow place here that Congress has carved out for state action.”

Representing BNSF, attorney Richard Love of the Tulsa firm Conner & Winters, said federal law clearly preempts states from regulating railroad crossings.

“I’m putting rocks over rabbit holes today,” Love said, adding that state train regulations must pass a simple test: “One, what does the state seek to regulate, and number two, does the proposed regulation burden rail transportation?”

Oklahoma’s law asked operators to run trains in a way that minimizes the obstruction of emergency vehicles, a requirement Love said “was designed to deter railroad operations with the stated purpose of the safety and welfare of the people.”

“This goes toward Judge Carson’s comments earlier, this is related toward the welfare of the people in the communities, it is about traffic congestion,” Love said. “It is not about traditional safety issues governed by the Federal Railroad Safety Act and the Federal Railroad Administration.”

U.S. Circuit Judge Tim Matheson Jr., also an Obama appointee, tested Oklahoma’s argument that railroad crossings do present issues of safety.

“If from the state’s perspective trains create a safety problem when they block crossings, for example by impeding emergency responders, why aren’t the blocked crossings therefore related to railroad safety under the Federal Railroad Safety Act?” Matheson asked.

Love reiterated Carson’s earlier comment about the inevitable tension between railroad safety and operations.

“Like Judge Carson noted, there are some gray areas and I think there is a balancing test that the courts have engaged in,” Love said.

The hearing was broadcast remotely via YouTube. The panel did not indicate when or how it will decide the case.

For more follow Courthouse News and Amanda Pampuro on Twitter.

from Courthouse News

Biden, world leaders push climate action, vow methane cuts

WASHINGTON (AP) — President Joe Biden tried on Friday to hammer out the world’s next steps against rapidly worsening climate change with a small group of other global leaders and announced a new U.S.-European pledge to cut climate-wrecking methane leaks.

Ever-grimmer findings from scientists this year that the world is nearing the point where the level of climate damage from burning oil, gas and coal becomes catastrophic and irreversible “represent a code red for humanity,” Biden said at the session’s outset.

“We have to act and we have to act now,” Biden said, speaking on a specially erected White House set that showed virtual arrays of solar panels in the background and a wall of other global leaders listening on screens.

Biden, in the public opening of the otherwise private talks, hailed a new U.S. agreement with the European Union aiming at cutting the two entities’ emissions of methane 30% by the end of this decade. Methane, the main component of natural gas, is one of the most potent agents of climate damage, gushing up by the ton from countless uncapped oil and gas rigs, leaky natural gas pipelines and other oil and gas facilities.

Biden evoked the “damage and destruction” he had seen in the United States, massive flooding in Europe and other global damage from the warming climate. He cited his trips earlier this month to California, where firefighters are battling larger, fiercer and deadlier wildfires almost year-round as temperatures rise and drought worsens, and to the northeastern U.S. and Gulf Coast, where Hurricane Ida and its flooding killed scores, as natural disasters increase in number and severity under climate change.

As Biden spoke Friday, California firefighters were trying to stop fires from reaching ancient groves of sequoias that are thousands of years old and the height of high-rises.

The White House billed Friday’s meeting as a chance for some of the world leaders to strategize how to achieve big, fast cuts in climate-wrecking petroleum and coal emissions. The administration also is trying to re-establish the United States’ Major Economies Forum — a climate group set up by former President Barack Obama and revived by Biden — as a significant forum for international climate negotiations.

Friday’s meeting followed a much bigger and splashier virtual White House climate summit in April that saw scores of heads of governments — representing allies and rivals, and big economies and small — making sweeping speeches about the need to act against climate change.

The list provided of Friday’s attendees included only a dozen leaders: those of Argentina, Australia, Bangladesh, the European Commission, the European Council, Indonesia, Italy, Japan, South Korea, Mexico, the United Kingdom and the United Nations.

China, India and Russia, with the United States, are the nations that emit the most climate-damaging gases from the production and burning of oil, natural gas and coal.

There was no word on their leaders’ taking part. However, the White House said in a statement that Biden’s climate envoy, John Kerry, led a minister-level climate session afterward with China, Germany, India and Russia. It gave no other details.

Climate advocates have stressed the importance of the U.S. coordinating with Europe and Asia for a joint front in coaxing China, which emits more climate-damaging fumes than the rest of the developed world combined, to move faster on cutting its use of dirty-burning coal-fired power plants in particular.

Fred Krupp, president of the nonprofit Environmental Defense Fund, said cutting methane pollution is the single fastest, most effective strategy to slow the rate of warming. A 30% reduction in methane pollution should be only “the entry point for this critical conversation. Many countries can and should aim even higher,” he said.

While methane is about 20 times more potent than carbon dioxide, it stays in the air only about a decade, which means cutting methane emissions achieves quicker climate action.

The U.S.-EU pledge comes as the U.S. Environmental Protection Agency is set to propose stricter rules against methane emissions for the oil and gas sector, as laid out in one of Biden’s first executive orders.

The new rules, expected in the next two weeks, are likely to be stricter than an Obama-era standard set in 2016. The Obama standard was reinstated in June after Congress took the unusual step of invalidating a Trump-era EPA rollback of methane protections.

The pending EPA rule is expected to restrict methane emissions from new and existing wells, including hundreds of thousands of older wells that are not subject to federal regulation under current law.

Biden has sought to make the U.S. a leader again in global climate efforts after President Donald Trump removed the U.S. from the Paris climate accord. Biden promised at the April summit to cut greenhouse gas emissions 50% to 52% below 2005 levels by 2030. Following through on that pledge depends in large part on passage of a $3.5 trillion budget bill that includes tax incentives and other policies to substantially cut fossil fuel pollution by the power sector. The Democratic-only legislation faces an uphill battle in Congress.

Biden also is striving to get significant investment in climate-friendly measures such as charging stations for electric vehicles out of Congress, in the face of objections from Republicans and some Democrats.

Friday’s session will be followed by another closed-door session of 35 to 40 world leaders, to be hosted Monday morning by United Nations Secretary-General Antonio Guterres and British Prime Minister Boris Johnson.

The private sessions are seeking to ensure global leaders come to a November U.N. climate session with commitments of significant new actions to slow climate change. Biden and others bill the climate summit in Glasgow as a last chance for the world to commit to cutting use of fossil fuels fast enough to stave off the worse scenarios of global warming.

“We have to bring to Glasgow our highest possible ambitions,” Biden said. “Those that have not yet done so, time is running out.”

___

By ELLEN KNICKMEYER and MATTHEW DALY Associated Press

Knickmeyer reported from Oklahoma City.

from Courthouse News

Minnesota high court acts fast to keep pardon system in place

SAINT PAUL, Minn. (CN) — The Minnesota Supreme Court upheld the state’s system for granting pardons Thursday afternoon, issuing a rapid-fire ruling after hearing arguments on an effort to reshape the system on Wednesday morning.

The court issued a brief order finding that requiring a unanimous vote of Minnesota’s governor, attorney general and Supreme Court chief justice to grant a pardon is permissible under the state’s Constitution. 

The order, issued Thursday afternoon by Justice Barry Anderson without the participation of the chief justice, was issued without opinion in an effort to put the Minnesota Board of Pardons back on its biennial meeting schedule. The board postponed a planned June 21 meeting this year because of a standoff between its members over a district court’s finding that the requirement of a unanimous vote to grant a pardon was unconstitutional. 

The decision is a victory for the court’s own Chief Justice Lorie Gildea and a loss for Democratic Governor Tim Walz and for Amreya Shefa, a pardon-seeker and Ethiopian national who now faces deportation because of a manslaughter conviction for the self-defense killing of her abusive husband. Gildea was the sole vote against a pardon for Shefa, leading Shefa to launch a challenge to the unanimous-vote requirement enshrined in state statutes in 1897. 

The parties’ dispute hinged on the language of an amendment to the Minnesota Constitution ratified the previous year which created the pardon board. The governor, the amendment reads, “shall have power in conjunction with the board of pardons… to grant reprieves and pardons.” 

Attorneys for Walz and Shefa argued Wednesday that that language privileged the Governor’s pardon power, and that allowing other board members to effectively veto his vote was a usurpation of that power.

“When unanimity is applied, you can have one member, a wing member of the board, that renders the governor’s vote a nullity,” Shefa’s attorney Andy Crowder told the Supreme Court. 

Attorney General Keith Ellison’s office also argued for the statute’s constitutionality, despite Ellison’s vote for a pardon for Shefa. Assistant Attorney General Pete Farrell told the court that the unanimous-vote requirement in a statute passed by a legislature almost identical to the one which passed the amendment spoke to the purpose of the amendment.

“The 1897 law imposing the unanimous vote requirement is powerful contemporaneous evidence of the constitution’s meaning,” he said, adding that while such a system wasn’t mandated by the constitution, it wasn’t forbidden either. 

In a statement Thursday, Ellison thanked the court for issuing “a swift order that will allow the Board of Pardons to get back to work,” but expressed sympathy for Shefa herself. 

“Hundreds of Minnesotans apply for pardons each year and they are counting on us to do the work that we are mandated to do,” Ellison said. “As someone who previously voted for a pardon for Ms. Shefa, I hope we will be able to rehear her case, given the threat to her life that awaits her in deportation.” 

Shefa, a Muslim whose husband Habibi Tesema brought her to the United States and imprisoned and abused her for nearly two years, has said she fears she will be killed if she is returned to Christian-majority Ethiopia. Shefa is also HIV-positive, which carries additional stigma and risk for her. 

Walz’ office issued its own statement, with similar sentiments to Ellison’s.

“The Governor is disappointed that Ms. Shefa will not receive the pardon that she deserves,” a spokesperson said. “Given the Supreme Court’s ruling, the Legislature needs to act to make clemency more accessible. The Governor looks forward to continuing the important work of clemency on the Board of Pardons. His administration will continue the fight for restorative justice and criminal justice reform.”

Walz and First Lady Gwen Walz have pushed for pardon reform throughout the governor’s term, arguing that the unanimous-vote requirement makes obtaining clemency unjustly difficult. Minnesota issues between 10 and 20 pardons annually, putting it ahead of most states but behind states like Alabama, Georgia, Nevada, Oklahoma, Utah and Pennsylvania for frequency of pardons granted. Pardon processes vary widely across states, but most allow wide executive latitude in granting pardons. 

Minnesota’s model is unique to the North Star State; Nevada follows a similar model but includes multiple Supreme Court justices and does not require a unanimous vote. Nebraska’s is also similar, but substitutes the secretary of state for the chief justice at quarterly meetings of its pardon board and also does not have a unanimity requirement. 

The sparseness of pardons in Minnesota drew other reformers to Shefa’s case. The Great North Innocence Project, which seeks relief for people wrongly convicted of crimes, filed an amicus brief with the Supreme Court arguing that “Minnesota’s clemency system is not working.” 

Julie Jonas, who penned the brief, is the Project’s legal director. She said Thursday that while Shefa’s guilt in her husband’s death meant she could not have been an Innocence Project client, she sympathized with her and agreed that the system needed reform. 

“Minnesota has incredibly difficult post-conviction laws. There are incredible hurdles to people who are innocent,” she said. Making it easier to get a pardon, she noted, could open up one more avenue for the innocence to gain clemency. 

While the Innocence Project’s clients have other options for post-conviction relief, she said, those too are often prohibitively difficult. Minnesota requires “clear and convincing” evidence to reconsider convictions, she said, and courts there have interpreted that to mean “incontrovertible.” 

“We have clients who, I believe, fully are innocent, but can’t get any relief because of the procedural hurdles for seeking relief through the court,” Jonas said. “If there was a chance that they could get a pardon, that would be a really good option for them, but historically the pardon board has not looked at these kinds of cases.” 

One positive step, she said, has recently come from Ellison’s office in the form of a conviction review unit. Such units, which can access resources from prosecutors to unearth wrongful convictions, have been able to increase exonerations in other states. 

“There’s been something like 470 exonerations through conviction review offices across the country, and the attorney general just started one this year.” 

On a grimmer note, she said, “the pardon route might have been a tool used by that unit…. And now they won’t really be able to do that.”

Attorneys for Shefa and Gildea did not immediately respond to requests for comment Thursday afternoon.

from Courthouse News

Tesla builds 1st store on tribal land, dodges state car laws

NAMBÉ, N.M. (AP) — Carmaker Tesla has opened a store and repair shop on Native American land for the first time, marking a new approach to its yearslong fight to sell cars directly to consumers and cut car dealerships out of the process.

The white-walled, silver-lettered Tesla store, which opened last week, sits in Nambé Pueblo, north of Santa Fe, on tribal land that’s not subject to state laws.

The electric car company can only sell and service its vehicles freely in about a dozen states, while it faces restrictions in others. Some, like New Mexico, ban Tesla from offering sales or repairs without going through a dealership. In January, the company struck a deal with Michigan to resolve a 2016 lawsuit, a symbolic victory that allowed it to sell in the backyard of the nation’s largest carmakers.

Supporters of Tesla say the shop in New Mexico marks the first time the company has partnered with a tribe to get around state laws, though the idea has been in the works for years.

From Oklahoma to Connecticut and other states, consumers can’t buy Teslas because the company won’t partner with dealerships and hasn’t been successful in winning over the courts or lawmakers to allow its direct sales model.

“These states have lots of sovereign Native American nations in them that could be interested in Tesla,” said Brian Dear, president of the Tesla Owners Club of New Mexico. “I don’t believe at all that this will be the last.”

Supporters say dealership laws protect middle-class jobs and force dealerships to compete, lowering prices. Critics say people can get information online and direct sales would lower costs.

New Mexico, Alabama, and Louisiana have the strictest bans, barring Tesla from both operating dealerships and repair shops. That makes repairing a Tesla more expensive and more of a hassle. Owners have to get their cars serviced in neighboring states or through traveling Tesla technicians who fix problems with what they have in a van.

The New Mexico Tesla shop, built on the site of a former casino, is nestled between two gas stations along a highway about an hour and a half north of Albuquerque, where most of the state’s Tesla owners live, Dear said.

While sales are prohibited in neighboring Texas — where the company plans to make its pickup trucks next year — repair shops are allowed. New Mexico Tesla owners have been traveling to El Paso, Texas, or other out-of-state cities to get repairs.

To buy a Tesla, they have to drive hours to pick them up or pay thousands of dollars to have them shipped.

“We drove a gas car — Volvo station wagon — to Denver and then I was the ‘lucky one’ who got to drive the gas-powered car back,” said Howard Coe, a filmmaker who works for a laboratory in Los Alamos, New Mexico, about 30 minutes from Nambé and about five hours from the nearest Colorado Tesla store.

Coe drove his wife’s Tesla sedan to the new store in Nambé on Tuesday to ask if an SUV he ordered can be delivered there. The store told him it’s not accepting deliveries for the foreseeable future and won’t do repairs until later this month.

Tribal officials who brokered the deal over a two-year period say it lines up with business interests and cultural values like caring for the environment.

The tribe “has the responsibility to the land where we have resided for over 1,000 years,” said Carlos Vigil, president of the Nambé Pueblo Development Corporation, calling Tesla’s service center “a renewable business that lines up with our belief system.”

Car dealership advocates say they respect the tribe’s decision but that they hope customers will buy electric cars from companies that follow state rules, arguing dealerships compete to lower prices and can service vehicles in more parts of the state.

“We have competition, we have the expertise, we’re in your local communities,” said Ken Ortiz, president of the New Mexico Automotive Dealers Association. “We contribute to the taxes.”

New Mexico has tax treaties with the tribe for sales, gambling and gasoline taxes. But tribal and state officials say it’s unclear if Tesla will have to pay vehicle sales taxes or how the revenue would be split between them.

Tesla, which dissolved its public relations department and generally doesn’t answer media inquiries, did not respond to a request for comment.

In response to a Tweet complaining of wait times in the Northeast last month, CEO Elon Musk wrote, “Tesla will expedite service center openings.”

___

By CEDAR ATTANASIO Associated Press/Report for America

from Courthouse News

Religious exemption requests grow as vaccine mandates rise

(AP) — About 3,000 Los Angeles Police Department employees are citing religious objections to try to get out of the required Covid-19 vaccination. In Washington state, hundreds of state workers are seeking similar exemptions. And an Arkansas hospital has been swamped with so many such requests from employees that it is apparently calling their bluff.

Religious objections, once used sparingly around the country to get exempted from various required vaccines, are becoming a much more widely used loophole against the Covid-19 shot.

And it is only likely to grow following President Joe Biden’s sweeping new vaccine mandates covering more than 100 million Americans, including executive branch employees and workers at businesses with more than 100 people on the payroll.

The administration acknowledges that some small minority of Americans will use — and some may seek to exploit — religious exemptions. But it said it believes even marginal improvements in vaccination levels will save lives.

It’s not clear yet how many federal employees have requested a religious exemption. The Labor Department has said an accommodation can be denied if it causes an undue burden.

In the states, mask and vaccine requirements vary, but most offer exemptions for certain medical conditions or religious or philosophical objections. The use of such exemptions, particularly by parents on behalf of their schoolchildren, has been growing over the past decade.

The allowance was enshrined in the federal Civil Rights Act of 1964, which says employers must make reasonable accommodations for employees who object to work requirements because of “sincerely held” religious beliefs.

A religious belief does not have to be recognized by an organized religion, and it can be new, unusual or “seem illogical or unreasonable to others,” according to rules laid out by the Equal Employment Opportunity Commission. But it can’t be founded solely on political or social ideas.

That puts employers in the position of determining what is a legitimate religious belief and what is a dodge.

Many major religious denominations have no objections to the Covid-19 vaccines. But the rollout has prompted heated debates because of the longtime role that cell lines derived from fetal tissue have played, directly or indirectly, in the research and development of various vaccines and medicines.

Roman Catholic leaders in New Orleans and St. Louis went so far to call Johnson & Johnson’s Covid-19 shot “morally compromised.” J&J has stressed that there is no fetal tissue in its vaccine.

Moreover, the Vatican’s doctrine office has said it is “morally acceptable” for Catholics to receive Covid-19 vaccines that are based on research that used cells derived from aborted fetuses. Pope Francis himself has said it would be “suicide” not to get the shot.

In New York, state lawmakers attempted to make the vaccine mandatory for medical workers, with no religious exemptions. On Tuesday, a federal judge blocked the rule because it lacked the opt-out.

An August AP-NORC poll found that 58% of white evangelical Protestants, 72% of white mainline Protestants, 80% of Catholics and 73% of Americans who are religiously unaffiliated say they have been vaccinated. Seventy percent of nonwhite Protestants say they have been, including 70% of Black Protestants.

Among white evangelical Protestants, the religious group least likely to have been vaccinated, 33% say they will not get the shot.

Across the U.S., public officials, doctors and community leaders have been trying to help people circumvent Covid-19 mask and vaccine requirements.

In Tulsa, Oklahoma, pastor Jackson Lahmeyer is offering a “religious exemption” form on his church’s website for download, along with links for suggested donations to the church. The 29-year-old is running for the U.S. Senate.

Anyone interested can get the form signed by a religious leader. He said on Twitter that more than 14,000 people have downloaded it. He wrote that what was amazing was “how many pastors refuse to sign the form for members in their church.” He said he can sign if someone joins the church and donates.

But obtaining a religious exemption is not as simple as producing a signed form from a religious leader. Measles outbreaks in schools over the past decade prompted some states to change their policies. Some now require an actual signed affidavit from a religious leader, instead of an online form. California got rid of nonmedical exemptions in 2015.

Some private employers are taking a hard line. United Airlines told employees last week that those who obtain religious exemptions will be put on unpaid leave until new coronavirus testing procedures are in place.

In Los Angeles, Police Chief Michel Moore said he is waiting for guidance from the city’s personnel department regarding the exemptions. The city has mandated that municipal employees get vaccinated by Oct. 5 unless they are granted a medical or religious exemption. A group of LAPD employees is suing over the policy.

“I can’t and won’t comment on the sincerity level” of people claiming a religious exemption, the police chief said. “I don’t want to speculate. Religion in America has many different definitions.”

Ten LAPD employees have died of Covid-19, and thousands in the department have been infected.

In Washington state, approximately 60,000 state employees are subject to a mandate issued by Gov. Jay Inslee that they be fully vaccinated by Oct. 18 or lose their job, unless they obtain a medical or religious exemption and receive an accommodation that allows them to remain employees.

As of Tuesday, more than 3,800 workers had requested religious exemptions. So far, 737 have been approved, but officials stressed that an exemption does not guarantee continued employment.

Once the exemption is approved, each agency has to evaluate the employee’s position and whether the person can still do the job with an accommodation while ensuring a safe workplace. Seven accommodations so far have been granted.

Inslee spokeswoman Tara Lee said that the process “may help distinguish between a sincerely held personal belief and a sincerely held religious belief.”

In Arkansas, about 5% of the staff at the privately run Conway Regional Health System has requested religious or medical exemptions.

The hospital responded by sending employees a form that lists a multitude of common medicines — including Tylenol, Pepto-Bismol, Preparation H and Sudafed — that it said were developed through the use of fetal cell lines.

The form asks people to sign it and attest that “my sincerely held religious belief is consistent and true and I do not use or will not use” any of the listed medications.

In a statement, Conway Regional Health President and CEO Matt Troup said: “Staff who are sincere … should have no hesitancy with agreeing to the list of medicines listed.”

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By COLLEEN LONG and ANDREW DEMILLO Associated Press

Associated Press Writers Zeke Miller, Stefanie Dazio and Rachael LaCorte contributed to this report.

from Courthouse News

Oklahoma board urges governor to commute death sentence

OKLAHOMA CITY (AP) — Oklahoma’s Pardon and Parole Board on Monday recommended the governor commute the death sentence of Julius Jones, who has maintained his innocence in a 1999 killing that has garnered national attention.

The five-member board voted 3-1 to recommend Jones’ sentence be commuted to life in prison after board member Scott Williams recused himself because of a professional relationship he had with one of the attorneys who spoke on Jones’ behalf. Republican Gov. Kevin Stitt ultimately will decide the fate of Jones, who claims he was framed for the 1999 shooting death of Edmond businessman Paul Howell.

“Personally, I believe in death penalty cases there should be no doubts. And put simply, I have doubts about this case,” said Chairman Adam Luck, one of Stitt’s appointees on the board who voted to commute Jones’ sentence.

Monday’s vote came after several hours of testimony from members of Howell’s family, prosecutors who tried the case, and attorneys and supporters of Jones.

Kelly Doyle, another Stitt appointee who voted in favor of commuting Jones’ sentence, said she agreed with Luck and noted there were mitigating factors she considered, including the fact that Jones, now 41, was 19 when Howell was killed during a carjacking.

Former District Attorney Richard Smothermon, who was appointed to the board by the Oklahoma Supreme Court, cast the lone no vote.

Stitt spokeswoman Carly Atchison said the governor plans to review the board’s recommendation carefully.

“The governor takes his role in this process seriously and will carefully consider the Pardon and Parole Board’s recommendation as he does in all cases,” Atchison said in a statement. “We will not have any further comment until the governor has made a decision.”

The board’s vote does not ensure Jones’ sentence will be commuted. Stitt’s predecessor, Republican Gov. Mary Fallin, rejected three separate recommendations for clemency for death row inmates from the board. The last time a governor granted clemency to a death row inmate was Democrat Brad Henry in 2010.

Jones’ case drew widespread attention after it was profiled in “The Last Defense,” a three-episode documentary produced by actress Viola Davis that aired on ABC in 2018. Since then, reality television star Kim Kardashian West and athletes with Oklahoma ties, including NBA stars Russell Westbrook, Blake Griffin and Trae Young, have urged Stitt to commute Jones’ death sentence and spare his life.

Jones alleges he was framed by the actual killer, a high school friend and former co-defendant who was a key witness against him. But Oklahoma County District Attorney David Prater and the state’s former attorney general, Mike Hunter, have said the evidence against Jones is overwhelming.

Information from trial transcripts shows that witnesses identified Jones as the shooter and placed him with Howell’s stolen vehicle. Investigators also found the murder weapon and a bandana with Jones’ DNA in an attic space above his bedroom. Jones claimed in his commutation filing that the gun and bandana were planted there by the actual killer.

Howell’s sister and two young daughters — one of whom testified Monday — were in Howell’s SUV when the carjacking happened in his parents’ driveway in the Oklahoma City suburb of Edmond.

“I was there when my brother Paul Howell was murdered,” Howell’s sister, Megan Tobey, told the board. “I know beyond a doubt that Julius Jones murdered my brother.”

Tobey said the killer also ran over Howell, crushing his legs, as he sped away.

“My parents never got over the death of their youngest son,” Tobey said. “They never got closure and they were never truly happy again.”

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By SEAN MURPHY Associated Press

from Courthouse News

Activists focus on tip site in protesting Texas abortion law

DALLAS (AP) — Young people on social media have found a way to protest Texas’ new law banning most abortions by focusing on a website established by the state’s largest anti-abortion group that takes in tips on violations.

They’ve shared short videos and guides on how to flood the Texas Right to Life site with fake information, memes and prank photos; it’s an online activism tactic that comes naturally to a generation that came of age in the internet era.

“I got the idea of, OK, well, we can sabotage these things online. It’s kind of like internet activism. Is it something we can realistically do and it’s not going to take us very long to do it,” said an 18-year-old TikTok user who goes by the name Olivia Julianna, using only her first and middle name due to safety concerns.

The law that took effect this month prohibits abortions once medical professionals can detect cardiac activity, which is usually around six weeks and before some women know they’re pregnant. It doesn’t make exceptions for rape or incest.

Though abortion providers say the law is unconstitutional, they say they are abiding by it.

“The law was not actually designed to be carried out in the sense of litigation, it’s designed to deter,” said Joanna Grossman, a law professor at Southern Methodist University in Dallas. “It’s just designed to bring the entire system of women’s health care to a screeching halt through fear.”

The website was down over the long weekend after host GoDaddy kicked it off, saying it violated the company’s terms of service, including a provision against collecting identifying information without consent. As of Tuesday, the site was being redirected to Texas Right to Life’s main website.

Texas Right to Life spokeswoman Kimberlyn Schwartz said Tuesday that the website’s domain is now registered with Epik and they’re in the process of moving to a new host, but aren’t yet disclosing which one. Epik used to host 8chan, an online message board known for trafficking in hate speech. Epik representatives didn’t respond to a message seeking comment Tuesday.

Schwartz said they are working to get the tipster website back up but noted that in many ways it is symbolic since anyone can report a violation. And, she said, abortion clinics appear to be complying with the law.

“I think that people see the whistleblower website as a symbol of the law but the law is still enforced, with or without our website,” Schwartz said, adding, “It’s not the only way that people can report violations of the law.”

Rebecca Parma, Texas Right to Life’s senior legislative associate, said they expected people to try to overwhelm the site with fake tips, adding “we’re thankful for the publicity to the website that’s coming from all of this chatter about it.”

And, Parma said, the website is just “another facet of the network we already have in place.” She said they have a network of anti-abortion attorneys and citizens who work with them, including people who are posted outside of abortion clinics and talk to people going in and coming out.

Julianna, who lives in Texas and has more than 136,000 TikTok followers, said that while she sees the tip website as more of a “scare tactic” than a threat, she has taken comfort in the like-minded people she’s found in her quest to thwart it.

“We’ve grown up in this new age of technology,” she said. “So now you don’t feel so isolated with what you believe in and your activism.”

Sean Wiggs, 20, who goes by Sean Black on TikTok, came up with a shortcut people could use to autofill the questions on the site. Wiggs, who lives in North Carolina, said he has received an “overwhelmingly positive” response on social media, and that he hopes efforts like his lead to more people “realizing the power that you have online.”

Julianna said she was inspired by TikTok activists who last year flooded a registration website for a rally in Oklahoma for then-President Donald Trump, although they had no intention of attending. While it’s unlikely they were responsible for the low turnout, their antics may have inflated the campaign’s expectations for attendance numbers that led to a disappointing crowd.

The law, which legal experts say was written in a way that puts defendants at a severe disadvantage, has left abortion providers leery of the potential cost of fighting a flood of frivolous lawsuits.

“I’ve never seen a statute that combines so many elements to disadvantage the defendant,” said Seth Chandler, law professor at the University of Houston.

For one, if the plaintiffs win, they can get attorneys fees and costs, Chandler said. If the defendants win, they can’t. Also, there could be multiple lawsuits filed in different counties based on the same allegation, and the statute prohibits a change of venue, he said.

“Even if the accusations that these vigilantes make are untrue, the staff and physicians would be put in the position of having to defend themselves in court, hire attorneys, travel for hearings, who knows in what county in Texas,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, which has four abortion clinics in Texas.

Dr. Jonathan Metzl, a professor of sociology and psychiatry at Vanderbilt University, said that although the website seems “comically inept at this point,” it does “what the actual law on the books is asking people to do, which is to report on people.”

Wiggs said that aspect of the law, the “way that they are deputizing private citizens to incentivize them to snitch on their neighbors,” really stood out to him.

“It’s just the way that they’re turning people against each other over an already polarizing topic such as abortion,” Wiggs said.

Texas has a history of creative forms of protest. In 2016, college students protested a new law allowing people to carry concealed handguns in public places, including universities, by walking around campus with sex toys in their hands and strapped to their backpacks, calling the protest “cocks not Glocks.” It got attention.

But, Metzl notes, it didn’t stop the Legislature enacting laxer gun laws.

“It’s a form of protest and resistance, but it hasn’t been effective changing policy,” he said. “The best way to change policy is to win elections.”

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By JAMIE STENGLE and BARBARA ORTUTAY Associated Press

Ortutay reported from Oakland, California.

from Courthouse News

Massachusetts high court says everyone gets filing deadline extension

BOSTON (CN) — Massachusetts litigants facing down deadlines can rest a little easier after a Friday morning ruling from the state’s Supreme Judicial Court adopting a broad interpretation of its own orders tolling civil statutes of limitations during the early days of the Covid-19 pandemic. 

The court issued orders regarding the tolling of statutes of limitations throughout the pandemic, opining that delays were justified by reduced access to the courts. In total, civil statutes of limitations in Massachusetts were tolled for 106 days, effectively stopping the clock from March 17 to June 30 of 2020.

In its Friday ruling on a personal injury case against a supermarket chain, the high court decided that the resulting 106-day grace period applied to all cases in the state. 

The order affirmed a district court’s denial of the chain’s motion to dismiss customer Margarita Melendez’s suit against it alleging that she was knocked to the floor by a Sturbridge, Massachusetts, supermarket clerk wheeling a cart out of a storeroom at a Shaw’s Supermarkets location in 2017. The three-year statute of limitations would normally have expired on Sept. 3, 2020, but Melendez’s suit was filed on September 24. 

Attorney Kristyn Kaupas of the Boston firm Kiernan Trebach argued on behalf of the grocer in April that cases whose filing deadline occurred after the conclusion of the midyear tolling period should not benefit from the extra 106-day delay, pointing out that a decision otherwise could impact deadlines as far out as 2026.

In an opinion penned by Judge Frank Gaziano, an appointee of Republican Governor Charlie Baker, the court rejected her reading of its orders. 

“The phrase ‘all civil statutes of limitations’ is clear and unambiguous. As indicated by the use of the word “all,’ the plain meaning of these words encompasses each and every civil statute of limitations, not just those where the statutory period of limitation expired between March 17, 2020, and June 30, 2020,” Gaziano wrote. 

“We adopted this broad tolling order cognizant of the challenges that the Covid-19 pandemic has engendered not only for the judiciary and court staff, but also for attorneys and litigants considering the initiation of legal action,” the judge added. “In light of ongoing state and local restrictions imposed to combat the spread of Covid-19 , and the effect of such restrictions on the ability of attorneys and litigants to prepare civil claims, we decline Shaw’s request that we narrow our order.”

“‘All’ means all,” he concluded, echoing a statement made by Melendez’s attorney, Michael Caplette of Southbridge, during oral arguments. 

Caplette, speaking after the ruling, said he appreciated the court’s consideration of the myriad impacts Covid-19 had on the lives of those involved in the legal system. 

“We’re very pleased by the result. I have a 78-year-old client who’s been waiting a long time for justice,” he said. “It’s very comforting, I guess is the best word, seeing the SJC reflecting the impact of Covid not just on the judicial system as an entity but the impact on the lives of the litigants and the lawyers.” 

The delay in filing, Caplette said, stemmed in part from Melendez’s condition and from the stresses put on the medical system by the virus. 

“The event occurred in September of ‘17. As we got further along, Ms. Melendez had continued medical treatment, and as we got to September of ‘20, I was unclear where she stood medically,” he said. “It wasn’t as important that we get a file on time as it was to know where Ms. Melendez was medically.”

The pandemic, too, pushed that date back. “It was hard to get records, and hard to get information at the time, because… the medical system was having some problems,” Caplette said.

The decision could have a nationwide impact. Twenty-five states tolled their statutes of limitations at some point during the pandemic, including California, Connecticut, Delaware, Georgia, Indiana, Iowa, Kansas, Louisiana, Maryland, Michigan, Minnesota, Indiana, Iowa,  Kansas, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Tennessee, Texas, Virginia and West Virginia. 

The Massachusetts court noted that it was aware of no other court that had addressed the issue. A federal court in Colorado took on a similar case, however, when it refused to extend a limitations period on “equitable” grounds without any court order or statute to make the pause official. 

Kaupas did not return a request for comment, nor did Shaw’s parent company, Albertsons Companies.

from Courthouse News