eBriefs June 18, 2019

TUESDAY, JUNE 18, 2019


U.S. Supreme Court

Civil Procedure

The Virginia House of Delegates lacks standing to represent the state’s interest in civil litigation challenging a redistricting plan; the house also lacked standing to challenge the plan since the House, as an institution, has no cognizable interest in the identity of its members.

Virginia House of Delegates v. Bethune-Hill; filed June 17, 2019


Cite as 2019 S.O.S. 18-281


Constitutional Law

A private nonprofit corporation designated as the operator of the public access channels on a cable system is not a state actor subject to the First Amendment.

Manhattan Community Access Corporation v. Halleck; filed June 17, 2019


Cite as 2019 S.O.S. 17-1702


Criminal Law and Procedure

The dual-sovereignty doctrine is not an exception to the double jeopardy right; a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.

Gamble v. United States; filed June 17, 2019


Cite as 2019 S.O.S. 17-646


Government Law

The Atomic Energy Act does not preempt state uranium mining laws.

Virginia Uranium, Inc. v. Warren; filed June 17, 2019


Cite as 2019 S.O.S. 16-1275


Ninth U.S. Circuit Court of Appeals

Consumer Protection

The Federal Trade Commission is not required to make a showing of irreparable harm to obtain injunctive relief in conjunction with a statutory enforcement action under Section 13(b) of the FTC Act.

Federal Trade Commission v. Preferred Law; filed June 17, 2019


Cite as 2019 S.O.S. 18-15462


California Court of Appeal

Civil Procedure

The procedure detailed in Welfare & Institutions Code §5152 does not give rise to the exercise of petition or free speech, which the anti-SLAPP statute is designed to protect. Since proceedings under the Lanterman-Petris-Short Act are not presumptively public in nature, speech in connection with it is not the type of speech the anti-SLAPP statute is designed to protect.

Swanson v. County of Riverside; Fourth District, Div. One; filed June 17, 2019


Cite as 2019 S.O.S. 2766


Civil Procedure

The automatic stay provisions of Code of Civil Procedure §§916–917.9 do not apply to a petition under Government Code §11187 to enforce an administrative subpoena.

Kennedy v. Superior Court (Grafilo); First District, Div. Four; filed June 14, 2019


Cite as 2019 S.O.S. 2771


Criminal Law and Procedure

A quantitative amount need not be proven for a defendant to be guilty of possession of a controlled substance. The look on a defendant’s face when he was caught with several cut-up pieces of paper which had a grainy feel, coupled with his prior drug use, were sufficient to establish his knowledge that he was in possession of methamphetamine. A prison guard with 11-years of experience and training on the recognition of methamphetamine was qualified to testify as to ways contraband was making its way into the prison system, and that methamphetamine-infused paper was used by placing it into one’s mouth to dissolve.

People v. Polk; Fourth District, Div. Two; filed June 14, 2019


Cite as 2019 S.O.S. 2773


Election Law

A water agency clerk exceeded the scope of her ministerial duty by declaring a referendum petition “confusing” and refusing to place it on an election ballot. The term “tax” in the general referendum provision of the state constitution encompasses water service fees.

Howard Jarvis Taxpayers Association v. Amador Water Agency; Third District; filed June 14, 2019


Cite as 2019 S.O.S. 2780


Environmental Law

Senate Bill No. 4 directs the Natural Resources Agency to conduct a study on hydraulic fracturing, and to prepare an environmental impact report regarding any potential environmental impacts of well stimulation, but nothing in Senate Bill No. 4 suggests that the Legislature intended to link the preparation of the study to the preparation of the EIR; there was no requirement for a subsequent or supplemental EIR following the release of the second and third volumes of the study. Senate Bill No. 4 required preparation of an EIR analyzing the environmental effects of well stimulation treatments only; nothing in Senate Bill No. 4 required an analysis of indirect impacts caused by the additional oil and gas production made possible by well stimulation treatments.

Center for Biological Diversity v. California Department of Conservation; Third District; filed May 16, 2019, publication ordered June 14, 2019


Cite as 2019 S.O.S. 2789


Family Law

A party who is bound by the automatic temporary restraining order under Family Code §2040(b)(3) must satisfy both the generally-applicable Civil Code requirements and §2040(b)(3)’s notice requirement before the severance of a joint tenancy with the other party is effective to eliminate the right of survivorship, but these requirements may be satisfied in any order; if a party records a joint tenancy severance in compliance with Civil Code §683.2(c) before providing the notice required by §2040(b)(3), the elimination of the right of survivorship takes effect when notice of the severance is filed and served on the other party.

Raney v. Cerkueira; First District, Div. Five; filed June 14, 2019


Cite as 2019 S.O.S. 2801


Family Law

Family Code §4062 allows a court to consider a request for childcare costs related to reasonably necessary education for prospective employment to allow a custodial parent to become self-supporting without the need for public assistance.

Greiner v. Keller; First District, Div. Three; filed June 14, 2019


Cite as 2019 S.O.S. 2808


Government Law

A police department’s decision to rescind an officer’s promotion based upon an officer’s failure to report a use of force constituted a merit-based denial of promotion, not a demotion. A negative evaluation that does not recommend or refer to any consequences apart from the release of an officer from his probationary promotion on merit grounds does not provide the officer with a right to an administrative appeal.

Conger v. County of Los Angeles; Second District, Div. One; filed June 14, 2019


Cite as 2019 S.O.S. 2810