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to access the court system.
An Overview of "Access to the Courts"
An inmate’s right of access to the courts is a fundamental constitutional right based on the First, Fifth, and Fourteenth Amendments to the Constitution. “All other rights of an inmate are illusory without it, being entirely dependent for their existence on the whim or caprice of the prison warden.” DeMallory v. Cullen, 855 F.2d 442, 446 (7th Cir. 1988) (quoting Adams v. Carlson, 488 F.2d 619, 630 (7th Cir. 1973)). A long line of U.S. Supreme Court cases establishes and expounds upon this fundamental right to access to the judicial system.
The case of Ex parte Hull, 312 U.S. 546 (1941), stands for the proposition that prisoners have a right to access the federal courts for purposes of filing habeas corpus petitions. “[T]he state and its officers may not abridge or impair [an inmate’s] right to apply to a federal court for a writ of habeas corpus.” Id. at 549. Later, the Court in Johnson v. Avery, 393 U.S. 483 (1969) recognized that adequate legal assistance is an indispensable element of meaningful access to the court system. Such access cannot be denied or obstructed. In Bounds v. Smith, 430 U.S. 817 (1977), the Court established the right of access to the courts for purposes of challenging confinement or conditions of confinement. This affirmative obligation can be met by providing access to law libraries or an acceptable alternative. Id. at 825. An inmate alleging a Bounds violation must establish that there was an actual injury, i.e., that deficiencies in the law library and/or other legal assistance programs hindered a non-frivolous lawsuit. Lewis v. Casey, 116 S.Ct. 2174 (1996).
However, “[t]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used….The fact that an inmate must wait for a turn to use the library does not necessarily mean that he has been denied meaningful access to the courts.” Campbell v. Miller, 787 F.2d 217 (7th Cir. 1986), quoting Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 858 (9th Cir. 1985). “An inmate is entitled to law library access not only for pending litigation but also for any contemplated litigation.” Stewart v. McGinnis, 800 F.Supp. 604, 618 (N.D.Ill. 1992), quoting Shango v. Jurich, 965 F.2d 289, 292 (7th Cir. 1992), quoting Hossman v. Spradlin, 812 F.2d 1019, 1021-22 n.2 (7th Cir. 1987). Thus, an inmate represented by counsel in pending litigation is still entitled to law library access for such counsel-represented litigation, any other pending litigation, or any future contemplated litigation. The only restrictions that a correctional facility can place on an inmate’s access to legal materials relate to time, manner and place relative to the security requirements of the facility.
Prison and other government officials can effectively limit exposure to claims alleging denial of an inmate’s right to access the judicial system by implementing policies which prohibit any restrictions to an inmate’s request to access legal materials–except those restrictions currently allowed under current case law. The resulting reduction in liability will allow for cost savings for correctional facilities, government officials, underlying governmental agencies, and taxpayers as a whole.
The Solution to this is simple--LRA!
It's time to let LRA's off-site legal researchers do the work.

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SEC Complaint, SEC v. Bear, Stearns & Co. Inc.
Consent of Bear, Stearns & Co. Inc.
SEC v. Citigroup Global Markets Inc., f/k/a Salomon Smith Barney Inc.
SEC Complaint, SEC v. Citigroup Global Markets Inc., f/k/a Salomon Smith Barney Inc.
Consent of Citigroup Global Markets Inc.
SEC Complaint, SEC v. Deutsche Bank Securities Inc.
SEC Final Judgment, SEC v. Deutsche Bank Securities Inc.
Consent of Deutsche Bank Securities Inc.
SEC Complaint, SEC v. Goldman, Sachs & Co.
Consent of Goldman, Sachs & Co.
SEC Complaint, SEC v. J.P. Morgan Securities Inc.
Consent of J.P. Morgan Securities Inc.
SEC Complaint, SEC v. Lehman Brothers Inc.
Consent of Lehman Brothers Inc.
SEC Complaint, SEC v. U.S. Bancorp Piper Jaffray Inc.
Consent of Bancorp Piper Jaffray Inc.

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014-2-108 – Calderon v. Geico General Ins. Co.
Comments Off on 014-2-108 – Calderon v. Geico General Ins. Co.
014-2-101 – In re: Construction Supervisions Services Inc.
Comments Off on 014-2-101 – In re: Construction Supervisions Services Inc.
014-2-094 – Boyer-Liberto v. Fontainebleu Corp.
Comments Off on 014-2-094 – Boyer-Liberto v. Fontainebleu Corp.
014-2-093 – Feldman v. Law Enforcement Associates Corp.
Comments Off on 014-2-093 – Feldman v. Law Enforcement Associates Corp.
014-2-085 – Barlow v. Colgate Palmolive Co.
Comments Off on 014-2-085 – Barlow v. Colgate Palmolive Co.
014-2-080 – Freeman v. Dal-Tile Corp.
Comments Off on 014-2-080 – Freeman v. Dal-Tile Corp.


In MAG Aerospace the panel affirms the application of the doctrine of assignee estoppel, preventing the employer of one of the named inventors from challenging the validity of the patents-in-suit. In Shaw, the panel cites the Federal Circuit decision in Cuozzo for its ruling that the IPR institution decision is not appealable, which the panel notes might soon be changed by the Supreme Court. The opinion also discusses the troublesome "redundancy doctrine" in which the Board refuses to institute IPRs on grounds that it feels are redundant of other grounds of institution.
In the past few weeks a number of new readers have asked to be included in these mailings. To review our process for the new readers, we provide a short summary of every precedential patent case, with a "read more" link. Hitting that link takes the reader to the opinion itself, edited to 20-30% of its original length so the reader can see what the court actually said, without having to wade through a 20-30 page opinion. We do that by providing summarizing headings, and by removing repetition analysis, detailed explanation of the technology at issue, and portions of the opinion that are not overly interesting or critical to the decision.
MAG sued B/E for infringement of three patents directed to vacuum toilets commonly found on commercial aircraft. The district court granted summary judgment of noninfringement on all patents, from which MAG appeals. The court also ruled that assignor estoppel barred B/E from arguing that the asserted patents are invalid, and B/E cross-appeals from that ruling. We affirm both rulings.
The patents-in-suit describe technology that facilitates maintenance and service of vacuum toilets and minimizes vehicle downtime through the use of toilet components that are "line replaceable units" ("LRUs")—single modules that are easily replaced in the field. The '054 patent describes a vacuum toilet that includes a toilet bowl that is "toollessly inserted into and removed from the installed position independent of the frame," and thus can be easily and quickly replaced. The '055 patent requires two LRUs: (1) a waste receptacle, and (2) a "valve set" that includes "at least two of the discharge valve, rinse fluid valve, and flush control unit." The '942 patent discloses a modular vacuum toilet in which the bowl is supported on top of a support frame by an "out-turned flange" around the opening of the toilet bowl.
The district court construed several terms of the patents. From the '054 patent, "toollessly" was construed to mean "without the use of any tools." From the '055 patent, "line replaceable unit" was construed to mean "a single module targeted for easy replacement in the field." Finally, from the '942 patent, the court construed "an out-turned flange supported by the top of the support structure" to mean an "outside rim or edge turned away from the sidewall, transferring loads to the top of the support structure."
In granting B/E's motion, the district court held: (1) the toilet bowls in B/E's toilets cannot be "toollessly" replaced; (2) the "valve set" in B/E's vacuum toilets is not an LRU; and (3) B/E's toilet bowl does not include an "out-turned flange supported by the top of the support structure."
MAG argues that the court erred in ruling that B/E's toilet bowl cannot be replaced "toollessly." MAG points to B/E's technical documents and the testimony of B/E's former Director of Sales, Paul Neary, which it says show that B/E's toilet bowls can be replaced either manually or with the use of a coin.
MAG is incorrect. There is no dispute that B/E's toilet bowl is attached to its frame with two screws. The record evidence showed that to release the screws and remove the bowl, some kind of tool is necessary. In fact, MAG presented no evidence that the screw fasteners could be turned using only one's hands (e.g., using a fingernail). B/E points out that every fact witness who was asked testified that a tool, such as a coin or a screwdriver, is necessary to release the screws. The B/E documents on which MAG relies do not create a genuine issue of material fact on this point. Instead, as the court properly determined, those promotional and non-technical documents were simply "using a definition of ‘tools' that excludes coins." The unrebutted evidence shows that the reference to "without tools" was a typographical error. Moreover, MAG's reliance on an out-of-context snippet of Neary's testimony is unpersuasive. When he was asked more directly about whether the toilet bowl could be removed manually, he stated that a tool (like a coin) is required. The district court previously determined that a coin is a tool and, because MAG is not challenging that construction, the court did not err in granting summary judgment of noninfringement.
MAG next argues that the court erred in granting summary judgment of noninfringement of the '055 patent on the basis that the "valve set" in the accused B/E toilets is not an LRU. The district court previously construed LRU to be "a single module targeted for easy replacement in the field." MAG says that the "discharge valve" and the "flush control unit" comprise the valve set in B/E's toilets. The question is thus whether the discharge valve and the flush control unit together act as a "single module targeted for easy replacement in the field." B/E presented significant evidence that the discharge valve and the flush control unit are removed separately. Indeed, B/E's maintenance manuals do not provide instructions for removing and replacing the discharge valve and the flush control unit as a single module. Thus, the district court properly concluded that there was no genuine material dispute as to whether the discharge valve and the flush control unit operated as a single module targeted for easy replacement. The grant of summary judgment of noninfringement of the '055 patent was thus correct.
MAG contends that the court erred in granting summary judgment of noninfringement of the '942 patent, arguing that the court incorrectly found that B/E's toilets do not have the claimed "outturned flange." The court previously construed "outturned flange supported by the top of the support structure" to mean "outside rim or edge turned away from the sidewall, transferring loads to the top of the support structure." Again, MAG does not challenge this construction, but instead argues that the court applied a different construction at summary judgment and that, under the proper construction, there is a genuine material dispute as to whether B/E's toilets infringe.
MAG identified two structures that it claims are outturned flanges on B/E's toilet bowl: (1) a first edge located at the base of the vertical columns on the sidewall of B/E's toilet bowl (called "ribs"); and (2) a second edge located within a groove machined into these vertical columns. MAG's expert testified that the identified edges contact and transfer loads to the top of the support structure of the B/E toilet. As the court concluded, however, neither edge meets the out-turned flange limitation of the '942 patent. The "first edge" identified by MAG is merely the bottom of the vertical columns and not a flange. As to the CAD drawing, there is no evidence that it represented the actual product marketed and sold. Instead, B/E provided evidence that its toilet contains a gap of approximately 1/8th of an inch between the vertical column and the frame; thus, the "first edge" does not actually touch the top of the support structure and cannot transfer load to the top of the support structure.
As for the second edge, it is merely a slot within the vertical columns and not an "outside rim or edge turned away from the side wall" as required by the claim construction. Thus, the second edge also does not meet the claimed limitation.
Because the court properly determined there were no genuine issues of material fact as to infringement of any of the asserted patents, we affirm the grant of summary judgment of noninfringement.
Here, one of the inventors of the patents-in-suit, Mark Pondelick, now works for B/E. Mr. Pondelick assigned the patents to his former employer, who in turn assigned them to MAG. The district court concluded that Mr. Pondelick was in privity with B/E and thus that assignor estoppel applies to bar B/E from attacking the validity of the patents. The district court did not clearly err in its determination.
The district court analyzed a number of factors identified in Shamrock Technologies to determine whether a finding of privity was appropriate: (1) the assignor's leadership role at the new employer; (2) the assignor's ownership stake in the defendant company; (3) whether the defendant company changed course from manufacturing non-infringing goods to infringing activity after the inventor was hired; (4) the assignor's role in the infringing activities; (5) whether the inventor was hired to start the infringing operations; (6) whether the decision to manufacture the infringing product was made partly by the inventor; (7) whether the defendant company began manufacturing the accused product shortly after hiring the assignor; and (8) whether the inventor was in charge of the infringing operation.
Based on the foregoing, we cannot say that the court abused its discretion in finding that assignor estoppel applies, so we affirm the ruling that B/E is barred from arguing that the patents are invalid.
Shaw appeals the PTAB's final written decision in consolidated IPRs of ACS's '360 patent. Shaw also petitions for writ of mandamus. We affirm-in-part, vacate-in-part, remand, and deny Shaw's petition.
The '360 patent relates to "creels" for supplying stranded materials to a manufacturing process. ACS sued Shaw for infringement but voluntarily dismissed the suit without prejudice. Within one year of service of the complaint, see 35 U.S.C. § 315(b), Shaw petitioned for IPR of all of the claims. Shaw proposed fifteen grounds of rejection, most of which were directed to so-called noninterposing claims. There were only three grounds directed at the so-called interposing claims: (1) ground 3, alleging that all of the interposing claims would have been obvious over Munnekehoff in view of Ligon; (2) ground 8, alleging that all of the interposing claims would have been obvious over Barmag in view of Lion; and (3) ground 11, alleging that all of the interposing claims were anticipated by Payne. The Board instituted IPR on all claims except claim 4. It did not, however, institute IPR on all fifteen grounds argued by Shaw. With regard to the interposing claims, the Board instituted IPR on the grounds that these claims would have been obvious over Munnekehoff or Barmag in view of Ligon. The Board denied Shaw's petition on the Payne-based ground. The Board explained that the Payne-based ground was "denied as redundant in light of its determination that there is a reasonable likelihood that the challenged claims are unpatentable based on the grounds of unpatentability on which we institute an inter partes review." (citing 37 C.F.R. § 42.108).
Over one year after service of the complaint, Shaw filed a second petition, requesting IPR of claim 4. The Board instituted IPR based on two of the six grounds proposed by Shaw—alleged obviousness over Munnekehoff in view of Bluhm (ground 3) and alleged obviousness over Barmag in view of Bluhm (ground 6). It denied the other grounds, exercising "its discretion under 37 C.F.R. § 42.108 to institute an IPR based solely on the asserted grounds directed to combinations with Bluhm and deny the remaining grounds as redundant." It rejected ACS's argument that 35 U.S.C. § 315(b) precluded it from instituting IPR. It determined that because ACS had voluntarily dismissed the suit without prejudice, it "nullified the effect of the alleged service of the complaint on Petitioner."
The Board consolidated the IPRs and concluded in a final written decision that Shaw (1) had not shown by a preponderance of the evidence that the interposing claims were unpatentable based on the instituted grounds, and (2) had shown by a preponderance of the evidence that the noninterposing claims (including claim 4) were unpatentable based on the instituted grounds. Both parties appealed.
Under 28 U.S.C. § 1295(a)(4), we have jurisdiction to review the Board's final written decisions in IPRs. We lack jurisdiction, however, to review the Board's decisions instituting or denying IPR, whether the Board has issued a final written decision. In re Cuozzo Speed Techs., LLC, 793 F.3d 1268 (Fed. Cir. 2015), cert. granted. Shaw argues we have jurisdiction to review the Board's final written decision, including its decision not to consider the Payne-based ground as redundant. It argues that § 314(d) is inapplicable because it is not seeking review of the Board's institution decision, but rather asking us to review the Board's authority in deeming a subset of asserted grounds redundant of instituted grounds. It argues that whether the Board can deem grounds redundant is not a decision whether to institute.
We disagree. As we recently explained, Congress authorized the PTO to prescribe regulations regarding institution and governance of IPRs. Harmonic Inc. v. Avid Tech., Inc., 2016 WL 798192 (Fed. Cir. Mar. 1, 2016). The PTO exercised this authority in promulgating 37 C.F.R. § 42.108, which allows the Board to institute IPR on only some of the challenged claims and to institute IPR of a given claim based on only some of the proposed grounds.
Here, Shaw proposed three grounds of unpatentability for the interposing claims: the Payne-based anticipation ground and two other multiple-reference obviousness grounds. The Board did not consider the substance of the Payne reference or compare it to the art cited in the other two proposed grounds. It made no specific findings that the three grounds overlapped with one another or involved overlapping arguments. It did not order Shaw to either choose which ground to maintain or show that the grounds were not, in fact, redundant. Instead, the Board merely denied IPR of the claims based on the Payne-based ground, writing without making any specific findings that the ground was "redundant" of the other two grounds. We cannot say we agree with the PTO's handling of Shaw's petition. We also cannot say that the PTO's decision made the proceeding more efficient, particularly given that the Payne-based ground was alleged anticipation by a single reference while the two instituted grounds were alleged obviousness over combinations of references. We have no authority, however, to review the Board's decision to institute IPR on some but not all grounds. "Denial of a ground is a Board decision not to institute inter partes review on that ground." 37 C.F.R. § 42.108(b). We thus lack jurisdiction to review the Board's refusal to institute IPR on the Payne-based ground, as well as its decision not to consider the Payne-based ground in a final written decision.
Shaw alternatively petitions for a writ of mandamus instructing the PTO to reevaluate its redundancy decision and to institute IPR based on the Payne-based ground. A writ of mandamus is a "drastic and extraordinary remedy" that can only be used in "exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion." Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004). A writ requires (1) that the petitioner have no other adequate means to attain the desired relief, (2) that the petitioner have a "clear and indisputable" right to the writ, and (3) that the issuing court, in the exercise of its discretion, be satisfied that the writ is appropriate under the circumstances. Id.
Shaw argues that these three conditions are satisfied. The argument is predicated on Shaw's concern that the statutory estoppel provisions would prevent it from raising the Payne-based ground in future proceedings under 35 U.S.C. § 315(e). The PTO argues that Shaw's statutory interpretation of the estoppel provision is incorrect because the denied ground never became part of the IPR. We agree with the PTO that § 315(e) would not estop Shaw from bringing its Payne-based arguments in either the PTO or the district courts. Both parts of § 315(e) create estoppel for arguments "on any ground that the petitioner raised or reasonably could have raised during that inter partes review." Shaw raised its Payne-based ground in its petition for IPR. But the PTO denied the petition as to that ground, thus no IPR was instituted on that ground. The IPR does not begin until it is instituted. Thus, Shaw did not raise—nor could it have reasonably raised—the Payne-based ground during the IPR. The plain language of the statute prohibits the application of estoppel under these circumstances. In light of our construction of the statute, mandamus is not warranted. Thus, we deny Shaw's petition for writ of mandamus.
The opinion now turns to Shaw's challenges to the Board's decision that the interposing claims would not have been obvious over Munnekehoff or Barmag in view of Ligon. Because there is nothing unusual about this analysis, this summary will move to ACS's Cross-Appeal.
ACS challenges the Board's decision that the second IPR was not barred pursuant to 35 U.S.C. § 315(b), which provides that an IPR may not be instituted if the petition "is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent." It argues that we have jurisdiction to review the decision because it is not challenging the Board's institution decision but rather the Board's interpretation of § 315(b).
Our court recently faced a similar challenge in Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015). We held that we lack jurisdiction to review "the Board's determination to initiate IPR proceedings based on its assessment of the time-bar of § 315(b), even if such assessment is reconsidered during the merits phase of proceedings and restated as part of the Board's final written decision." (citing 35 U.S.C. § 314(d)). We noted that a "narrow exception to the bar on judicial review exists for claims that the agency exceeded the scope of its delegated authority or violated a clear statutory mandate." Id. Section 315(b) keys the time bar at issue to the service of the patent infringement complaint. The Board decided that ACS's voluntary dismissal of the suit without prejudice "nullified the effect of the service of the complaint." The Board reasoned that we consistently have interpreted the effect of dismissals without prejudice as leaving the parties as though the action had never been brought. Thus, the Board concluded that Shaw's petition was not time barred.
It is true we have held in other cases that dismissals without prejudice leave the parties as though the action had never been brought. While these cases did not address § 315(b) or whether service of a complaint can be nullified, based on Achates, we lack jurisdiction to review this aspect of the Board's decision. We note that the Supreme Court's decision to grant certiorari as to the second question in Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 890 (2016) may affect this court's holding regarding the reviewability of the decision to institute in Achates. As of now, we are constrained by our precedent.
I fully join the panel opinion. I write separately on the Board's application of the so-called "Redundancy Doctrine." The Board's improper, conclusory statements declining to implement IPR on grounds it found to be "redundant" leave me deeply concerned about the broader impact that the Redundancy Doctrine may have on the integrity of the patent system. The Board should, at a minimum, provide a reasoned basis how or why grounds are "redundant." The PTO claims the Board's statement here refers to efficiency concerns, but in failing to clearly articulate the basis of its decision, the Board's final written decision fails to satisfy its obligations under the APA. Regardless of the reviewability of that decision, the lack of a reasoned basis deprives future tribunals of the necessary basis to determine whether estoppel should apply. The PTO has lost sight of its obligation to consider the effect of its implementation of the IPR process on the integrity of the patent system as a whole. 35 U.S.C. § 316(b).
Comment: Under 35 U.S.C. § 315(e)(2), "the petitioner in an inter partes review of a claim in a patent under this chapter that results in a final written decision . . . may not assert either in a civil action . . . or in a proceeding before the International Trade Commission . . . that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review." Because institution decisions are not (at least for now) appealable, Judge Reyna argues convincingly that the Board must clearly articulate why an invalidity contention is redundant. While the majority opinion says there will be no estoppel if the prior art at issue was not at least part of the basis for institution of the IPR, if a ground of rejection truly is redundant, then perhaps future challenge on that ground should in fact be barred. As noted by Judge Reyna, the Board's analysis as to why the ground is redundant would be invaluable to a court considering this issue.
Cree's '175 patent is directed to the production of white light through "down-conversion" of blue light from light-emitting diodes ("LEDs"). Down-conversion is the process in which high-energy (shorter wavelength) light is absorbed and then reemitted as lower energy (longer wavelength) light. By choosing the particular absorbing material, light at a desired wavelength (and thus a desired color) can be produced.
A light-emission device, comprising a single-die, two-lead gallium nitride based semiconductor blue light-emitting diode emitting radiation; and a recipient down-converting luminophoric medium for down-converting the radiation emitted by the light-emitting diode, to a polychromatic white light, wherein the luminophoric medium is dispersed in a polymer that is on or about the single-die, two lead gallium nitride based semiconductor blue light-emitting diode.
Pinnow teaches that a blue argon-ion laser can produce white light by down-conversion of short wavelength laser light to combinations of longer wavelength light emitted by various phosphors. Pinnow explains that a necessary condition for achieving a true white is that the illuminating laser beam have a wavelength of approximately 4,950 A, which is in the blue to violet range of the visible spectrum.
Stevenson's LED emits light in the violet region of the spectrum and may be converted to lower frequencies (lower energy) with good conversion efficiency using phosphors. Stevenson notes that with the "use of different phosphors, all the primary colors may be developed from this same basic device."
Finally, Nakamura discloses a gallium nitride LED that emits blue light. The Nakamura LED was much brighter than other similar LEDs previously developed, and it was widely recognized as a major breakthrough, earning Dr. Nakamura the 2014 Nobel Prize in Physics.
Based on those references, the examiner rejected the claims and the Board upheld the rejection. The Board agreed with the examiner's reasoning, incorporating 109 pages of the examiner's answer into its own opinion. In the Board's view the invention was "nothing more than a new application of a high-power, high-brightness blue LED developed by Dr. Nakamura in late 1993." The Board found that the new application was predictable in view of the state of the art in LEDs, the market demand for white light devices, the finite number of identified means to convert light from LEDs into white light, and the advantages of using the down-conversion approach.
On appeal, Cree first argues that the Board erred by assuming that it was "known" in the prior art to make white light from a monochromatic LED through down-conversion. Cree infers that the Board's use of the word "known" indicates that the Board erroneously concluded that a single reference disclosed down-conversion from blue LED light to white light. We do not read the Board's use of the term "known" in that fashion. Instead, the Board's statement that down-conversion was a known approach for creating white light from an LED is best understood to mean that persons of skill in the art were aware that down-conversion could be used to make white light out of blue light, regardless of the source of the light.
The Board found that Pinnow teaches a down-conversion process for creating white light that would work with blue light of any source, including the blue LEDs disclosed in Nakamura. That was a reasonable conclusion to draw from Pinnow. Therefore, the Board was correct when it said that it was "known" to create white light from LEDs using down-conversion.
Cree next argues that the Board reached its conclusion that down-conversion was "known" by misreading the declarations of Cree's experts. We agree that Cree's experts testified that down-conversion from blue LED to white light was a known, but disfavored, option prior to the availability of high intensity blue LEDs such as Nakamura's. Because it was reasonable for the Board to draw the conclusion from expert testimony that down-conversion was a known solution for generating white light from a blue LED, the Board's decision is supported by substantial evidence. Where two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency's decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.
Cree argues that "neither the Examiner nor the Board articulated any rational motivation for why a skilled artisan would have combined the teachings of Pinnow—which discloses the projection of a large, high-powered, gas laser beam through a modulator and a deflector and onto a phosphor screen to display a white image—with the teachings of Stevenson and Nakamura, which disclose violet and blue LEDs."
Contrary to Cree's contention, the Board provided a sufficient, non-hindsight reason to combine the references. The Board found that a person of ordinary skill in the art would realize that Nakamura (a brighter LED) would be an upgrade over the LED of Stevenson for use with down-conversion and that the Nakamura LED would therefore be suitable to produce white light based on the teachings of Pinnow. The availability of the high-powered Nakamura LED thus provided the motivation to combine Stevenson's use of LEDs to create primary colors with Pinnow's use of a short-wavelength light source to create white light. " * * * While the exact same phosphor mixture as used in fluorescent bulbs might not be used with a GaN-based LED of Stevenson or Nakamura, it certainly is factual evidence that those of skill in the art have sufficient understanding of the scientific and engineering principles to choose phosphors for a broadband, UV-to-blue primary radiation source." The examiner and the Board thus based the rejection on sufficient evidence that a person of ordinary skill in the art would have had a reason to combine the references.
Cree also argues that the Board improperly rejected Cree's secondary evidence of nonobviousness. Cree points to three categories of secondary evidence that, according to Cree, the Board improperly discounted: evidence of industry praise; evidence of licensing; and evidence of the commercial success of white LED products. The Board analyzed each of the alleged secondary considerations and concluded that the evidence of secondary considerations "does not outweigh the strong evidence of obviousness."
Cree first points to two press releases from the Fraunhoffer Institute and contends that those press releases support the inference of nonobviousness. The Board, however, found the press releases unpersuasive as secondary evidence because the praise was directed to the Fraunhoffer Institute's own work, not the work of the inventors of the '175 patent.
We agree with the Board's treatment of this evidence. While praise in the industry for a patented invention, and specifically praise from a competitor, tends to indicate that the invention was not obvious, self-serving statements from researchers about their own work do not have the same reliability.
Cree next points to evidence of licensing. The Board found the evidence of licensing unpersuasive for failing to show a nexus to the '175 patent. Our cases require affirmative evidence of nexus where the evidence of commercial success presented is a license, because it is often cheaper to take licenses than to defend infringement suits. Cree has provided press releases evidencing that it has entered into licensing transactions, but has not shown that the licenses were based on the merits of the '175 patent.
The final piece of secondary evidence on which Cree relies is evidence of commercial success. Cree put forward evidence in the form of a declaration by Dr. Brandes, who presented sales figures showing the growth of the white LED market and stated that in his opinion there is a nexus between the sales figures and the '175 patent. We agree with the Board that Dr. Brandes' declaration merely repeats, in conclusory fashion, that there is a nexus between the success of white LEDs and the claimed invention. In a portion of the examiner's answer that was adopted by the Board, the examiner found that the commercial success of white LEDs "cannot be due to simply making a single-die semiconductor LED that emits white light," because if that were so, "then the commercialization could have started back in 1973." Instead, the examiner found, "it appears that Wetzel, Redwing, and Stringfellow all acknowledge the invention of a GaN LED with sufficiently high light output, somewhere in the UV to blue region of the spectrum was the thing that made the down-converting device of Stevenson . . . commercially successful."


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1. Parol evidence, not inconsistent with a written instrument, is admissible to apply such instrument to its subject.
2. Where a map or plat is referred to in a deed for the purpose of fixing a boundary, the effect is the same as if it were copied into the deed.
3. This is a familiar rule of construction in all those cases wherein no other description is given in the title deeds than the number of the lot on the surveyor's plan of a township or other large tract of land.
4. Where a plat is referred to in a deed simply for the purpose of fixing boundary, the fact that such plat was illegally made does not in any wise effect the validity of the deed.
5. The statute of Wisconsin of 1849 permits a grantor out of possession to make a valid conveyance of lands adversely held by another.
6. In all cases where there is adverse possession, by virtue of a paramount title, of lands thus conveyed, such possession is regarded as eviction, and involves a breach of the covenant of warranty.
7. Where the paramount title is in the warrantor and the adverse possession is tortious, it is no eviction either actual or constructive, and no action will lie upon the covenant.
8. A purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or misrepresentation.
9. In such a case, he must seek his remedy at law on the covenants in the deed.
10. If there is no fraud and no covenants to secure the title, he is without remedy, as the vendor selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants in the deed.
11. Relief will not be afforded upon the ground of fraud unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings.
12. Where a party designing to foreclose a mortgage notified the mortgagor before filing the bill that he elected to consider the entire amount of the mortgage debt as due, he was entitled to a decree for the full amount although, according to the terms of the bond, one of the installments was not due when the bill was filed.
13. The equity jurisdiction of the courts of the United States is derived from the Constitution and laws of the United States, and their power and rules of decision are the same in all the states.
14. Rules of decision established by the Supreme Court for its own government and that of subordinate courts are unaffected by state legislation.
15. Without the authority of a rule of the Supreme Court, a district court of the United States has no authority to direct a mortgagor to pay the balance of debt which may remain unsatisfied after the sale of the mortgaged premises.
A careful examination of the facts disclosed in the record is necessary to enable us to arrive at a proper solution of the questions presented for our determination.
"One equal undivided half part or share of that certain tract of land bounded and described as follows, viz.:"
the town plat of Mechanicsville; thence easterly on said last mentioned line to the east line of fractional lot two 2 in section four 4, in township seven 7, north of range twenty-two 22 east; thence south to the south line of said fractional lot two 2; thence westerly on the south line of said fractional lot two 2 to the center of the Milwaukee River; thence northerly in the center of the Milwaukee River as it winds and turns to the place of beginning. Also the privilege of damming and flowing the Milwaukee River on said fractional lot two 2, as high as said river would be raised by maintaining a dam at least nine feet high, where a certain dam was located across said river, near the south line of fractional lot two 2, in the year 1837, as described in deed from Daniel Bigelow and Amasa Bigelow to Herman V. Prentice, recorded in Volume 'C' of deeds, on page 329, as to flow water."
The deed contains a covenant of general warranty.
Upon the same day, Noonan executed to Lee a mortgage upon the same premises, conditioned to secure the payment of $4,000 in four equal annual installments, with interest at the rate of 7 percent per annum, payable annually, according to the condition of a bond of the same date executed by Noonan to Lee, and also to secure the payment by Noonan of all taxes upon the mortgaged premises. It was further provided that upon any default by Noonan in respect of the due payment of principal, interest, or taxes, the entire principal of the mortgage debt should, at the option of Lee, thereupon be deemed to have become due and should, with the interest thereon, be collectable.
"I agree, if my title fails to the property for the consideration of which this bond is given, except as against the United States, for the portion of the river beyond the meandered line, that I will not enforce this bond, and if any encumbrance shall be found, that the amount of the same shall be deducted from the moneys to fall due on this bond."
mortgage debt; that he had notified Noonan that he claimed the entire debt to be due, and praying for a sale of the mortgaged premises, the payment of the mortgage debt, and for general relief.
The decree finds the amount due Lee to be $5,267.20; directs the sale of the mortgage premises, the payment of the mortgage debt, and the bringing of the surplus moneys, if there were any, into court, and then provides that if the moneys arising from the sale were insufficient to pay the debt, interest and costs, that the Marshal in his report of the sale should specify the amount of the deficiency, that Noonan should pay it with interest, "and that the complainant may have execution therefor."
I. It is said the deed is void because it refers for a part of the boundaries to the recorded plat of the Town of Mechanicsville.
The law of Wisconsin revision of 1849 requires that a town plat shall give "the names, width, courses, boundary, and extent," of all streets and alleys; that it shall be certified by the surveyor, acknowledged before an officer authorized to take the acknowledgment of deeds, and that it shall then, with the certificate of acknowledgment, be recorded.
The 9th section of the act provides that if any person "shall dispose of, offer for sale or lease" any lot or part of a lot before these requirements are complied with, he "shall forfeit and pay the sum of $25 for each and every lot or part of a lot sold or disposed of, leased or offered for sale."
the plat bounding upon the river is marked "reserved for hydraulic purposes." An island opposite to it is laid down upon the plat. Fractional lot 2, which is twice referred to in the boundaries as given in the deed, bounds upon the river. Parol evidence, not inconsistent with a written instrument, is admissible to apply such instrument to its subject. The designation of the "southeast quarter" in the certificate of acknowledgment was a clerical mistake. The maxim "falso demonstratio non nocet" applies. The proof in the case shows clearly where the plat was in fact located. As regards the statute, the plat was fatally defective, and afforded no warrant to the recording officer for putting it on record. Nevertheless, its being there was a fact, and whether there or elsewhere, the reference to it in a deed for the purpose of fixing a boundary is sufficient. "That is certain which can be rendered certain." Where a map or plat is thus referred to, the effect is the same as if it were copied into the deed.
"This is a familiar rule of construction in all those cases wherein no other description is given in the title deeds than the number of the lot on the surveyor's plan of a township or other large tract of land."
Davis v. Rainesford, 17 Mass. 211; McIver's Lessee v. Walker, 4 Wheat. 445.
II. It is claimed that the deed is void because it was executed to convey lots designated upon a town plat not made in conformity to law, and which it was therefore penal to sell.
No lots are mentioned. The plat is referred to only for the purpose of boundary. The land with the boundaries is conveyed without reference to any subdivision. The fact that it had been illegally laid out and platted into lots and streets does not in any wise affect the deed.
III. It is objected that the deed from Prentiss to Church and Clark of August 4, 1847, in Lee's chain of title, and the deed from Church and Clark to Lee of July 7, 1848, were void because they were made by grantors out of possession, when the premises were held adversely by other parties under deeds apparently valid.
At the dates of those deeds the Coltons were in possession under a deed of the 22d of June, 1847, from James H. Rogers.
"Twenty-two acres of land more or less undivided, in fractional lot number two of section four in township seven, range twenty-two, together with one-half of the water power belonging to said fractional lot two, and also all the right, title and interest of the said parties of the first part in and to said lot two."
A title to twenty-two acres undivided would have given the grantee no right to take exclusive possession of the mortgage premises. So far as the record discloses the facts, it appears that Rogers claimed entirely under sales for taxes. It will presently appear that they gave him no title, real or apparent, which he could convey to another.
It is not denied that at the time Lee conveyed to Noonan, his chain of title was perfect unless it was broken by one or more of the facts claimed by Noonan to have produced that effect. In this connection, the tax deeds found in the record are relied upon. The consist of Exhibits C, D, E, F, G, H, I, J, and the deed to Orton of the 25th of April, 1852.
"Part of the S.E. quarter section fourth, T. 7, R. 22, bounded north by Demster, east by Jones and Bare, west by river, and south by Allerding, nineteen acres."
The land in controversy is not in the southeast quarter of the section, and there is nothing in the case which shows what river is referred to, or where the lands of Demster and the other parties named are situated.
2. Exhibit F, I, and J, are duplicates respectively of Exhibits H, C, and E, and may be laid out of view.
3. Exhibits C, D, and G, embrace none of the land in controversy. This leaves only Exhibits E and H to be examined.
This is a deed to James H. Rogers. It bears date on the 17th of February, 1846. It recites a sale to Rogers on the 14th day of December, 1840, for the taxes of that year. The description embraces lots one and six in block five of the plat. This block is within the limits of the mortgaged premises. At the time of the sale and for several years previous, Rogers had been in possession of the mortgaged premises under the deed of the 27th of July, 1837, from Prentiss, to whom he had given back a mortgage of the same date to secure the purchase money. Prentiss had proceeded to foreclose the mortgage, and the premises were sold under a decree rendered on the 26th of June, 1840. Prentiss became the purchaser, and on the 5th of October, 1840, received the master's deed for the premises.
His relation to the property, and to his vendor and mortgagee also, rendered it his duty to make such payment. Neither he nor anyone claiming under him can avail himself of a title thus acquired, as against Prentiss and those claiming under him. Douglass v. Dangerfield, 10 O.Rep. 152; Creps v. Baird, 3 O.St. 377.
This deed was also to James H. Rogers, and bears date on the 23d of December, 1845. It recites that the sale was made to Rogers on the 9th of December, 1839, for the taxes of that year.
It embraces lots 1, 2, 3, 4, 5, and 6, in block 5, as delineated on the plat. During all of the year 1839, Rogers was in possession as the vendee of Prentiss, and the same remarks apply as to Exhibit "E."
Underlying these deeds is another objection.
"I do not know of such a village as Mechanicsville in fact, though I have heard of it. I do not know where the plat of Mechanicsville is located, though I know where they claim it is located. I know the land described in the mortgage in the bill of complaint from its boundaries."
It does not appear in the case that any street was ever improved, that any lot was ever enclosed, or that any house was ever built with reference to the boundaries of any street or lot. It comes out incidentally in the evidence touching possession that there is but one house on the plat, and that it is in a ruinous condition and unoccupied. Nothing is proved in pais recognizing the existence of the plat.
Under these circumstances, it may well be doubted whether the sales of lots for taxes were not illegal and void. Wheeler v. Russell, 17 Mass., 258; Strong v. Darling, 9 O.Rep. 201.
We have not found it necessary to decide that question, and we express no opinion upon the subject.
As the facts are disclosed in the record, we find no defect in the title of Lee. We find that Noonan's title has not "failed," and no encumbrance upon the property is shown. There has been, therefore, no breach of the agreement endorsed upon the bond, nor has there been any breach of the covenant of general warranty in Lee's deed to Noonan. The deed contains no other covenant. The Statute of Wisconsin of 1849 permits a grantor out of possession to make a valid conveyance of lands adversely held by another. In all cases where there is adverse possession, by virtue of a paramount title, of lands thus conveyed, such possession is regarded as eviction, and involves a breach of the covenant of warranty. Where, as in this case, the paramount title is in the warrantor and the adverse possession tortious, it is no eviction either actual or constructive, and no action will lie upon the covenant. Randolph v. Meek, 1 Martin & Yerger 58; Moore v. Vail, 17 Ill. 185; Rawle on Covenants of Title 224.
There is another view of this case which must not be passed over in silence.
It is not claimed by Noonan in his answer that there was any fraud or misrepresentation on the part of Lee, or that any fact exists in regard to the title which was unknown to him when he bought the property. It appears by the testimony of Orton that there was a controversy between him and Noonan about water power, and that it has been adjusted. Orton says: "He" (Noonan) "has no interest with me in this land of record. I don't know that he has any." "I don't know that I have any interest in the result of this suit. I don't know that I will be benefited in any way by Noonan's success in this suit." This is guarded and peculiar language. It is impossible to read the testimony of Orton and resist the conclusion that Noonan bought the property for a purpose, and that having held the title for several years without paying anything, and accomplished that purpose, he is now seeking, upon the pretense of defects of title, finally to avoid the payment of the purchase money and throw back the property upon the hands of his vendor. This ungracious work a court of equity will not permit him to do.
allegation in the bill, so that it may be put in issue by the pleadings."
This doctrine is fully sustained by the best considered authorities. Corning v. Smith, 2 Seld. 84; Plat v. Gilchrist, 3 Sandf. S.C. Rep. 118; Butler v. Hill, 6 Ohio St. 217; Beebe v. Swartout, 3 Gilman 162.
The proofs in this case show that before filing his bill, Lee notified Noonan that he elected to consider the entire amount of the mortgage debt as due. This entitled him to a decree for the full amount, although according to the terms of the bond, one of the installments was not due when the bill was filed. Noyes v. Clark, 7 Paige 180.
It remains to consider that part of the decree which directs Noonan to pay the balance which may remain unsatisfied after exhausting the proceeds of the mortgaged premises.
The equity jurisdiction of the courts of the United States is derived from the Constitution and Laws of the United States. Their powers and rules of decision are the same in all the states. Their practice is regulated by themselves and by rules established by the Supreme Court. This Court is invested by law with authority to make such rules. In all these respects they are unaffected by state legislation, Neves v. Scott, 13 How. 270; Boyle v. Zachary Turner, 6 Pet. 658; Robinson v. Campbell, 3 Wheat. 323.
A majority of my brethren are of the opinion, and I am directed by them so to announce, that in the absence of a rule of this Court authorizing it to be done, it was not competent for the court below to make such an order.
That part of the decree is reversed. The residue is affirmed. The cause will be remanded to the court below with instructions to proceed accordingly.

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In this case, the Institute for Justice challenged in federal court a New Hampshire law that allowed government-hired inspectors, for the purposes of property tax assessment, to conduct blanket and warrantless searches of entire neighborhoods. Any person who refused to allow a warrantless search of his home automatically lost his right to appeal his property-tax assessment. The court dismissed the lawsuit on procedural grounds, but IJ has continued its work challenging unconstitutional inspection schemes across the country.
A New Hampshire statute allows local officials to obtain a warrant to enter and search a person’s home if he refuses to allow a government-hired inspector to conduct an interior inspection for the purpose of property assessment. If the officials would rather not take the time to get a warrant, they don’t have to. That is because the statute allows the government to punish the homeowner for refusing to allow a warrantless and unconstitutional search of his home by terminating his right to appeal his property-tax assessment. In short, the statute puts homeowners in an intolerable position: no matter what they do, government employees can either force their way into their homes or punish them if they refuse to “consent” to a search by an inspector. Even the mere act of asking the inspector to get a warrant can get them in trouble.
The Fourth Amendment of the U.S. Constitution prevents government officials from forcing themselves into citizens’ homes. That protection is important because, as the U.S. Supreme Court has stated, “the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic.” But New Hampshire’s property-assessment inspection law has cast aside the Fourth Amendment rights of its citizens. For that reason, the Institute for Justice joined with four New Hampshire residents on August 25, 2004, to challenge it in federal district court. The goal of the lawsuit is to restore the protections provided by the Fourth Amendment to all New Hampshire homeowners.
For that reason, they were shocked when Town officials began a process of mandatory interior inspections for every home in Hollis. Inspectors from a private appraisal company hired by the Town began canvassing their neighborhood and trying to search the inside of their homes, as well as the homes of their neighbors. Like many other towns in the state, Hollis was revaluing all the homes of its residents, and had commissioned a private appraisal company to conduct interior inspections. Phil and Tony were perfectly willing to cooperate with the company’s inspectors by answering any questions they had about their homes and discussing public records about their homes. Both of them allowed the inspectors to walk around the outside of their homes and take measurements. However, they did not want strangers searching inside their homes and invading their privacy. Even though one of the inspectors who came to Tony’s home pointed out that the Town could always get a warrant if Tony refused to let him in, Tony’s family, like Phil’s, stood their ground. After all, the Fourth Amendment prevents government employees from forcing their way into the homes of law-abiding citizens.
Normally, a homeowner in New Hampshire who believes his tax assessment is incorrect can apply for an abatement (a reduction in his home’s assessed value) to his town’s board of selectmen or its assessors. If that application isn’t granted, he can then apply for relief to the New Hampshire Board of Tax and Land Appeals (BTLA) or his local Superior Court. But because Phil and Tony refused to allow a search, Hollis summarily denied their applications for abatement—even though they pointed out errors in the valuation of their land, not their home. And the BTLA, relying on the statute discussed above, said that it would not consider their appeal for the same reason.
Tony and Alicia Lekas live in Hudson. Next year, an inspector from an appraisal company hired by their Town will attempt to search the inside of their home. Like Phil and Tony Stanizzi, they are willing to cooperate with the local assessor’s office by answering any questions it may have, discussing public records about their house, and allowing an inspector to make an exterior inspection. But they don’t want a stranger walking through their home.
Generally, the Fourth Amendment requires that, in order to enter a person’s property without his consent, a government official must obtain a valid search warrant issued by a judge and based on some reasonable suspicion (“probable cause”) that the law is actually being violated. Both these requirements—probable cause and the issuance of a warrant—serve to safeguard people from what the U.S. Supreme Court has called “arbitrary invasions by governmental officials.” The requirement of “probable cause” ensures that government officials cannot engage in blanket searches of the homes of law-abiding citizens. The warrant requirement ensures that a neutral judge will review an official’s determination that “probable cause” exists. Because officials are not neutral (they are pursuing the government’s interests and may see “probable cause” where it does not exist), the Supreme Court has emphasized that generally, searches conducted without a warrant are presumed unconstitutional.
For more than a century and a half, these strict requirements served as an ironclad protection against blanket and arbitrary searches of all private property by government officials. But, in the 1960s, the Supreme Court carved out a narrow exception to the probable cause requirement for “administrative inspections.” This exception, which applies to both commercial properties and private residences, was designed to allow the government to look for “dangerous conditions,” like faulty wiring, that can only be discovered with a system of blanket inspections. When government officials from the Occupational Health and Safety Administration (OSHA) inspect a business to look for violations of worker-safety laws, or municipal employees inspect an apartment building for violations of the housing code, they are conducting “administrative inspections.” Officials still have to get a warrant to conduct these inspections, but they need merely show that there are “reasonable legislative and administrative standards” in place for conducting the search in order to obtain the warrant. Thus, it is much easier for governments to get a warrant for an “administrative inspection” than it is for them to get a warrant in other situations (e.g., if they are investigating a crime).
Unfortunately, governments at all levels have slowly and steadily worked to expand the outer limits of this exception. This trend has been most noticeable within the business context. For example, government inspectors can now conduct even warrantless searches of businesses in certain closely regulated industries. Also, many federal environmental laws authorize government officials to engage in warrantless inspections of commercial properties. While many people may not have noticed the diminishing Fourth Amendment rights of business owners, the problem has now started to affect people in their homes. In some instances, local governments like Park Forest, Ill., and Marietta, Ga., have used administrative inspections to target people that they deem “undesirable” because they live in rental properties. In an effort to remove rental properties and their inhabitants from the community, these governments conduct inspections under the pretext of preventing dangerous conditions. In 1998, the Institute, representing tenants in Park Forest, succeeded in securing a federal-court ruling that the City’s administrative inspection scheme violated the Fourth Amendment. The Institute has recently filed suit challenging Marietta’s scheme, which allows officials to search a person’s apartment without even asking for his or her consent to do so.
While Park Forest and Marietta are examples of governments that have used administrative inspections to single out certain individuals under the pretext of preventing dangerous conditions, New Hampshire has gone even further. The state is using the “administrative inspections” exception to require entry into all homes for a purpose—tax assessment—that has nothing to do with preventing dangerous conditions, or even the pretext of preventing those conditions. And, perhaps because it suspects that directly forcing an individual to submit to a search not based on probable cause is constitutionally suspect, the State discourages people from refusing “voluntary” consent to an inspection by penalizing those who do refuse. Under this scheme, New Hampshire homeowners are confronted with a stark choice: either submit to a violation of their Fourth Amendment rights or be punished for asserting those rights.
Under the Fourth Amendment, violating individual rights in this manner is forbidden. The U.S. Supreme Court intended for the “administrative inspections” exception to be very narrow within the context of a home. In deciding that housing inspectors could search rental properties for violations of the housing code, it stressed that a search for housing code violations was aimed at preventing dangerous conditions, like faulty wiring, that could threaten the safety of the whole neighborhood. Only by conducting a blanket search could the government be sure that the area was safe. The Court never said that, outside the specific context of preventing dangerous conditions that can only be prevented through blanket searches, the government could undertake a program of “administrative inspections” that are not based on reasonable suspicion of a violation of the law. And the Court emphasized that, no matter what, an official has to obtain a warrant from a judge so that arbitrary inspections are avoided.
Just as importantly, the Court has always stressed that a person cannot be punished for exercising his constitutional rights. Just as the government cannot punish someone for exercising his right to free speech under the First Amendment, or his right against self-incrimination under the Fifth Amendment, it cannot punish him for exercising his Fourth Amendment right to refuse a warrantless search of his home. That makes perfect sense. Because governments cannot directly take away their citizens’ constitutional rights, they shouldn’t be allowed to take them away indirectly by punishing citizens who choose to assert those rights.
It’s important to remember that the government’s ends, no matter how important, don’t justify unconstitutional means. After all, one of the most important interests of government is protecting its citizens from violent crime. But that interest doesn’t allow police officers to force every homeowner to submit to searches that aren’t based upon a reasonable suspicion of wrongdoing. That may be more efficient for the government, but it certainly would violate residents’ civil rights. If preventing violent crime isn’t a strong enough interest to justify blanket searches and threaten those who refuse to submit, the same is certainly true for property assessment. But under New Hampshire law, it’s easier for the government to force its way into the homes of law-abiding citizens than it is for it to search the home of a suspected criminal. In other words, the more one obeys the law, the easier it is for the government to get inside his or her home. The Fourth Amendment does not allow such an absurd result.
What’s equally absurd about this result is that government officials do not need to get inside a person’s home to assess home values properly and equitably. According to a survey conducted by the International Association of Assessing Officers—an educational research association whose members work in the field of property appraisal and assessment—at least 18 states and the District of Columbia (out of a total of 41 that provided answers on this question) do not conduct interior inspections of properties when reassessing values.
Inspectors can obtain a wealth of information about a home’s value by doing things like looking at home sales of comparable properties, asking the homeowner questions, and reviewing public records, such as building permits. That way, at least, homeowners don’t have to worry about uninvited strangers roaming around their homes. The bottom line is that local governments can fulfill their assessment responsibilities without violating their citizens’ Fourth Amendment rights.
For more than two centuries, New Hampshirites have enjoyed a well-deserved reputation for zealously guarding individual rights and promoting the cause of freedom. Indeed, New Hampshire was the first state to declare its independence from Britain, and the first state to adopt its own constitution. Unfortunately, New Hampshire’s property-assessment inspection law runs counter to that reputation, and puts the state in the forefront of those that abuse the Fourth Amendment rights of their citizens. Although government officials in at least 22 states regularly attempt to conduct interior inspections of homes for tax assessment purposes, only New Hampshire, Alaska, New Mexico and Wisconsin have statutes that explicitly authorize assessing officials to require entry by obtaining a warrant. (Even without explicit authorization, some officials in other states may obtain warrants on an ad hoc basis.) And while 13 states make it difficult to succeed on appeal if a homeowner does not submit to an interior inspection, only New Hampshire, Minnesota, Nevada and Wisconsin go to the extreme of taking away the right to file an appeal if consent is refused. Moreover, only New Hampshire and Wisconsin combine the worst of both worlds by authorizing officials to obtain a warrant and take away the appellate rights of anyone who refuses to consent to a warrantless search.
The Institute and its clients are challenging New Hampshire’s interior inspection statute on two grounds. First, because the statute punishes individuals who refuse to consent to a warrantless search of their homes by terminating their right to appeal their assessment, it has placed what the U.S. Supreme Court calls an “unconstitutional condition” on the exercise of Fourth Amendment rights. Even under the “administrative inspections” exception, government officials cannot force their way into someone’s home without getting a warrant from a neutral judge. By penalizing those who assert their well-established right to refuse a warrantless search, New Hampshire is trying to indirectly bypass that right. As the Institute will demonstrate, governments’ attempts to bypass constitutional rights are unconstitutional, and must be stopped.
The Institute will also demonstrate that requiring interior inspections of homes without probable cause that a law is being broken violates the Fourth Amendment of the Constitution. Unlike searching for health and safety problems within an apartment complex, searches conducted for the purpose of property assessment do not involve the prevention of dangerous conditions that can only be discovered with a blanket search; thus, these searches do not fall within the narrow exception for “administrative inspections.” If New Hampshire is allowed to use that exception in this case, then the exception truly has swallowed the Fourth Amendment rule.
This case is the latest effort by the Institute for Justice to establish legal safeguards for property rights and to challenge attempts by bureaucrats to trample upon those rights. As the U.S. Supreme Court has declared, “Individual freedom finds tangible expression in property rights.” As noted above, in the federal court case of Black v. Village of Park Forest, the Institute secured a ruling that penalizing individuals for asserting their Fourth Amendment rights violates the Fourth Amendment. This case will seek to build upon that precedent in order to restore and defend constitutional protections of property rights. Recently, the Institute also filed suit in state court in Marietta, Ga., to prevent that City from forcing the tenants of rental properties to submit to warrantless inspections. As noted above, the Supreme Court has emphasized that the Fourth Amendment “gives concrete expression to a right of the people which is basic to a free society.” If governments can continue successfully to erode the Fourth Amendment’s protection against unwarranted and unreasonable searches, then we are in danger of becoming a society that is far less free.
The lead lawyer for the Institute for Justice in this case is Staff Attorney Bert Gall. Also on the litigation team are Senior Attorney Scott Bullock and IJ President and General Counsel Chip Mellor. The Institute is joined by able local counsel Curtis Payne of Enfield, N.H.
The Institute for Justice is a nonpartisan, nonprofit Arlington, VA-based public interest law firm. Through strategic litigation, training and outreach, IJ advances a rule of law under which individuals control their own destinies as free and responsible members of society. It litigates to secure private property rights, economic liberty, school choice, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government. In addition, it trains law students, lawyers and policy activists in the tactics of public interest litigation to advance individual rights. The Institute was founded in September 1991.
 N.H. Rev. Stat. ¤ 74:17.
 Payton v. New York, 445 U.S. 573, 601 (1980).
 N.H. Rev. Stat. ¤ 76:16.
 N.H. Rev. Stat. ¤¤ 76:16-a and 76:17.
 United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 313 (1972).
 Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528 (1967) (quoting Wolf v. People of State of Colorado, 338 U.S. 25, 27 (1949).
 Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasis added).
 Camara, 387 U.S. at 530-31.
 Maryland v. Buie, 494 U.S. 325, 331 (1990).
 Camara, 387 U.S. at 528.
 Payton, 445 U.S. at 583-84.
 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, ¤ 4.1 (collecting Supreme Court cases) (2004).
 Groh v. Ramirez, 124 S.Ct. 1284, 1290 (2004).
 Camara, 387 U.S. at 538.
 Susan M. McDonough, Administrative Searches v. The Fourth Amendment, 20 New Eng. J. on Crim. & Civ. Confinement 195 (1993) (examining cases).
 Timothy Lynch, Polluting Our Principles: Environmental Protection and the Bill of Rights, Policy Analysis, Cato Institute (April 20, 1995).
 Black v. Village of Park Forest, 20 F. Supp. 2d 1218 (E.D. Ill. 1998).
 Brumberg, et. al. v. City of Marietta, et. al., Case No. 04-1-5794-34 (Cobb County Superior Court; filed July 21, 2004).
 Camara, 387 U.S. at 537.
 Perry v. Sindermann, 408 U.S. 593 (1972) (First Amendment); Garritty v. New Jersey, 385 U.S. 493 (1967) (Fifth Amendment); Black v. Village of Park Forest, 20 F.Supp.2d 1218 (N.D. Ill. 1998) (Fourth Amendment).
 International Association of Assessing Officials, Property Tax Policies and Administrative Practices in Canada and the United States, ¤ 5 (2000).
 “New Hampshire Firsts,” New Hampshire Almanac (available online at http://www.state.nh.us/nhinfo/firsts.html).
 Property Tax Policies and Administrative Practices in Canada and the United States, ¤ 5.
 The law on this matter is often unclear. In other states, such as South Dakota and Alabama, these searches may occur without statutory authorization.
 United States v. James Daniel Good Real Property, 510 u.s. 43, 61 (1993).
 Black v. Park Forest, 20 F.Supp.2d 1218 (N.D. Ill. 1998).

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11352. (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes,administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.
This Health and Safety section covers a plethora of crimes involving illegal drugs. Specifically, the code section makes it illegal to transport, import, sell, supply, administer, or simply to give away a controlled substance.
Potential Punishment: As a felony, a conviction can result in three to five years in prison and up to $20,000 in fines. Alternatively it can receive a term of probation with a maximum of one year in jail. Enhanced sentences can be given for crimes involving transporting for sale across different county lines.
(1) That the defendant actually or indicated that he/she would transport, import, provide, or sell a controlled substance.
(2) That the defendant knew the substance was illegal.
(3) Defendant's knowledge that it was present or within his control.
(4) That the substance at issue is indeed a controlled substance.
(5) That there was a sufficient amount of the narcotic to be used as a drug.
• “Selling” signifies an exchange of the drug for anything of value.
• “Transports” means that the defendant moved the illegal substance from one place to another regardless of how small of a distance.
• Transporting drugs can occur even if the defendant used a bicycle for means of transportation. People v. LaCross (2001) 91 Cal.App.4th 182.
• A person transporting drugs solely for personal use can receive a sentence consisting of probation and drug treatment pursuant to California Penal Code 1210(a). People v. Barasa (2002) 103 Cal.App.4th. Additional case law has given the presiding judge the authority to determine if the transportation was for personal use, instead of allowing the jury to make the determination.
• “Administering” means that the defendant applied the substance to the body of another or caused the person to ingest or otherwise use it. UnderPeople v. Label (9174) 43 Cal.App.3d 766, 770-771, a person cannot be charged with administering if they applied the drug only to themselves.
It is not required that the prosecutor show that the defendant knew exactly what illegal substance he/she possessed. It is sufficient that the defendant knew that the substance was some kind of illegal drug.
Element Three: The defendant does not need to directly handle the substance to take part in administering, transporting, selling or furnishing.
• A usable amount is something more than debris or residue. People v. Ruvalcaba (1993) 6 Cal.4th 62, 23 Cal.Rptr.2d 628, People v. Piper (1971) 19 Cal.App.3d 248. It must be enough for a person to use as intended (for drug effect purposes) but does not have to actually intoxicate the user.
• If the defendant is charged with transporting a drug, the usable amount requirement still applies. People v. Emmal (1998) 68 Cal.App.4th 1313,People v. Ormiston (2003) 105 Cal.App.4th 676.
• Sale of a drug does not require that it be a usable amount. People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522.
• In regard to administering, furnishing, providing (i.e. giving away) or importing a controlled substance; there is no definite answer (per case law) on whether a usable amount is required.
Possession for Sale under California Health and Safety Codes 11351 and 11378.
• Police misconduct: police officers are required to investigate a crime within the authority granted to them under law. If police have stepped out of their authority in an attempt to arrest or charge a person, they may be liable for a civil rights lawsuit under USC 1983. To support such a lawsuit, an attorney can seek further information about past misconduct by the police officer(s) through a process called a Pitchess motion.
• No knowledge: Defense counsel can assert that the defendant did not have the requisite knowledge of the drug's presence, or of its status as an illegal substance.
• 4th Amendment Violations: The defense can argue that an illegal search and seizure occurred (which led to the discovery of the illegal drugs) in violation of the personal protections provided by the 4th Amendment of the U.S. Constitution.
• No intent: Where the prosecution has alleges that the defendant participated in an offer to perform one of the acts proscribed by this code, the defense can argue that the he/she did not actually have the “intent” to carry out such actions. This lack of intent can be based on an offer made out of fear, duress, or as part of a joke.
• Mistaken identity: A defense based on mistaken identity would assert that the defendant did not have anything to do with the illegal drug activity, and the police have identified the wrong person. For example, where a defendant is charged with intent to sell because drugs were found in a home shared by several people, but the defendant wasn't actually aware of or involved in the situation.
• Entrapment: an entrapment defense can be used where police caused an otherwise law abiding person to engage in illegal activities. Entrapment is a difficult defense to establish because it requires showing very extreme, coercive conduct on the part of law enforcement.

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October 22, 1930. Rehearing Denied November 5, 1930.
Appeal from Lee County Court; H. F. Schlosshan, Judge.
Action by R. M. Zuehlke against J. T. Irvin and another. Judgment for defendants, and plaintiff appeals.
John Simmang and E. T. Simmang, both of Giddings, for appellant.
Thos. W. Thompson, of Giddings, for appellees.
On October 22, 1929, appellant sued appellees on their note for $189.80, which was due October 1, 1925. Appellees specially excepted to the action on the ground that it was barred by the four years' statute of limitation (Rev.St. 1925, art. 5527). Appellant answered, both in the justice court and in the county court on appeal, that on September 11, 1928, after maturity of the note, but before it was barred by limitation, appellees requested him not to sue on the note and to extend the time of payment one year, or to October 1, 1929; that in consideration of the extension of time of payment, appellees then paid all interest due and agreed to pay the interest accruing in the future on said indebtedness; and that appellant was suing on the new parol agreement to pay the debt evidenced by the note, which new agreement was not barred until two years after it matured. Appellees then specially excepted to the action on the ground that article 5539 (Rev.St.) required the acknowledgment of the justness of a debt barred by limitation to "be in writing and signed by the party to be charged thereby." The trial court sustained this exception, and, upon appellant's refusal to amend, rendered judgment that appellant take nothing by his suit; hence this appeal.
The trial court erred in sustaining the exception and in rendering judgment against appellant. The statute quoted has no application, because the indebtedness represented by the note was not barred when the parol promise to pay same was made. On the back of the note was this indorsement: "9 — 11 — 28. Int. paid and extended to 10 — 1 — 29." Appellant sued upon the alleged parol promise to pay the indebtedness represented by the note which was not barred at the time the parol agreement was made. Numerous authorities hold that the above statute has no application under such facts; and further hold, in substance, that parties to a note may, by parol agreement made before the debt is barred by limitation, extend the date of payment of the indebtedness represented by the note for a new and valuable consideration; that in such case suit should not be upon the note but upon the oral agreement, and that limitation begins to run two years after the maturity of the oral agreement, which in this case would have been October 1, 1931. These authorities also hold that an extension of time of payment of a pre-existing debt with the payment of interest then due, and the further agreement to pay interest accruing in the future, constitute a new and valuable consideration for the oral agreement or promise to pay the indebtedness within the contemplation of the above rule. Heisch v. Adams, 81 Tex. 97, 16 S.W. 790; Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061, 47 Am.St.Rep. 128; Adkins-Polk Co. v. Rhodes (Tex.Com.App.) 24 S.W.2d 351; McNeill v. Simpson (Tex.Civ.App.) 24 S.W.2d 485, 487; First State Bank v. Bowman (Tex.Civ.App.) 203 S.W. 75; Kraus v. Morris (Tex.Civ.App.) 245 S.W. 450; Remy v. Sayeg (Tex.Civ.App.) 13 S.W.2d 472; Wells v. Moor, 42 Tex. Civ. App. 47, 93 S.W. 220.
The case will be reversed and remanded for a trial upon the alleged oral agreement or promise to pay the indebtedness.


Otis and Julia Thompson were married in 1921, and lived together as husband and wife until 1925, when Otis deserted her. They were never divorced, but they never lived together again, and he never contributed anything to her support or that of their two children, nor did she ever seek to have him do so. Otis "married" another woman in 1929. In 1940, Julia "married" another man, and thereafter lived and held herself out as the latter's wife. She was divorced from him in 1949. Shortly before Otis' death, he asked Julia to "take him back," but she refused, having no intention of ever again living with him and resuming the relationship of husband and wife.
Held: at the time of Otis' death in 1951, Julia was not his "widow" within the meaning of the Longshoremen's and Harbor Workers' Act, 33 U.S. C. § 902 (16), and was not entitled under the Act to compensation for his death. Pp. 347 U. S. 335-337.
(a) Since, at the time of the decedent's death, Julia was not living apart from him "by reason of his desertion," she was not his "widow" within the scope of the provision. P. 347 U. S. 336.
(b) By her purported remarriage, Julia severed the bond which was the basis of her right to claim a death benefit as the decedent's statutory dependent. P. 347 U. S. 337.
On June 15, 1951, Otis Thompson died from injuries suffered while loading a ship for his employer. Two women sought a death benefit under the Longshoremen's and Harbor Workers' Compensation Act, each claiming to be his "widow." The Deputy Commissioner denied both claims, that of one woman on the ground that she was not the lawful wife of the decedent, and that of the other because, at the time of Otis' death, she was living apart from him not "by reason of his desertion," 33 U.S.C. § 902(16). On a review of the latter dismissal, the District Court sustained the Deputy Commissioner's order, and the Court of Appeals for the Fifth Circuit affirmed. 205 F.2d 527. In doing so, that court rejected contrary decisions of the Courts of Appeals for the Second and Ninth Circuits, Associated Operating Co. v. Lowe, 138 F.2d 916, Moore Dry Dock Co. v. Pillsbury, 169 F.2d 988. We granted certiorari to resolve this conflict. 346 U.S. 921.
The Deputy Commissioner made these findings. Otis and Julia Thompson were married in 1921, and lived together as husband and wife until November, 1925, when Otis deserted her. They never lived together again, and he never contributed anything to the support of Julia or their two children, nor did she ever endeavor to secure such support. Meanwhile, Otis had taken up with one Sallie Williams, and they went through a marriage ceremony in 1929. Julia, in turn, found another mate, one Jimmy Fuller, whom she "married" in 1940. Thereafter she was known as Julia Fuller. She was formally divorced from Fuller in 1949. Shortly before Otis' death, he asked Julia to "take him back," but she refused, having no intention of ever again living with him and resuming the relationship of husband and wife.
"The term 'widow' includes only the decedent's wife living with or dependent for support upon him at the time of his death, or living apart for justifiable cause or by reason of his desertion at such time,"
33 U.S.C. § 902(16). We agree with the court below that, since she was not at the time of her husband's death living apart from him "by reason of his desertion," she was not a "widow" within the scope of this provision. * Whatever may have been the situation prior to her "marriage" to Jimmy Fuller in 1940, it is clear that, after that date, she lived as the wife of Jimmy Fuller, held herself out as his wife, and had severed all meaningful relationship with the decedent.
and the decedent subsisting at the time of the latter's death, which, for present purposes, means that she must continue to live as the deserted wife of the latter. That nexus is wholly absent here. Julia herself, by her purported remarriage, severed the bond which was the basis of her right to claim a death benefit as Otis' statutory dependent. The very practical considerations of this Compensation Act should not be subordinated to the empty abstraction that, once a wife has been deserted, she always remains a deserted wife, no matter what -- the "no matter what" in this case being the wife's conscious choice to terminate her prior conjugal relationship by embarking upon another permanent relationship.
* It was not contended before us that, in the circumstances of this case, the phrase "for justifiable cause" has a different reach than the phrase "by reason of his desertion."
the contrary. [Footnote 2] I agree with the Second and Ninth Circuits.
the wife's living apart from her husband was either "justifiable" or by reason of his "desertion." That the Court treats its holding as one of statutory construction cannot obscure the actual effect of what it is doing. The Court is taking from the deputy commissioners their congressionally granted power to determine from all the facts and circumstances whether a widow is entitled to compensation.
I would reverse with directions to remand the cause to the Deputy Commissioner to determine, free from judicial compulsion, whether, as a fact, petitioner's living apart was for "justifiable cause" or on account of her husband's "desertion." If either of these issues should be decided in favor of the petitioner, she is entitled to compensation.
Ryan Stevedoring Co. v. Henderson, 138 F.2d 348; American Mutual Liability Ins. Co. v. Henderson, 141 F.2d 813.
Associated Operating Co. v. Lowe, 138 F.2d 916, aff'g 52 F.Supp. 550; Moore Dry Dock Co. v. Pillsbury, 169 F.2d 988.
Voehl v. Indemnity Ins. Co., 288 U. S. 162, 288 U. S. 166; Parker v. Motor Boat Sales, Inc., 314 U. S. 244, 314 U. S. 246; O'Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504, 340 U. S. 507-508.


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On March 26, the Supreme Court of the United States heard oral arguments in two partisan gerrymandering cases, Rucho v. Common Cause and Lamone v. Benisek. During the course of arguments, the justices appeared divided over the issues central to both cases: are partisan gerrymandering claims justiciable under federal law, and should federal courts intervene to settle disputes over alleged partisan gerrymandering?
Associate Justice Sonia Sotomayor, an Obama appointee, responded as follows to the point made by Paul Clement, counsel for Rucho, that partisan gerrymandering claims are not justiciable under federal law: “Once we decided the one person, one vote concept, we’ve been pretty much in all of our jurisprudence saying that certain acts by the legislature are unconstitutional, including race discrimination and others. It can’t be that simply because the Constitution says that a particular act is in the hands of one — one branch of government, that that deprives the courts of reviewing whether that action is constitutional or not.
The high court is expected to rule on both cases prior to the conclusion of the current term in June of this year.
The phrase partisan gerrymandering refers to the practice of drawing electoral district maps with the intention of favoring one political party over another. In contrast with racial gerrymandering, on which issue the Supreme Court of the United States has issued rulings in the past affirming that such practices violate federal law, the high court has not yet a ruling establishing clear precedent on the question of partisan gerrymandering. Although the court heard two partisan gerrymandering cases last term, it ruled on procedural and standing grounds in each, without addressing the question of justiciability.
Ellis was accused of sexually assaulting a state capitol employee in October 2015. Ellis allegedly offered to help an acquaintance after she fell down in a bar by taking her to his home, where he allegedly sexually assaulted her. The woman, who chose to remain anonymous, said she did not consent to any sexual acts. The Philadelphia Inquirer first published an account of the allegations on January 24, 2019. On January 25, 2019, House Republican leaders issued a statement calling for Ellis’ resignation.
The leaders said Ellis should focus on his family and addressing the allegations, which were under criminal investigation by the Dauphin County district attorney. They also removed Ellis from his committee leadership positions and committee assignments, pending the outcome of the investigation. Gov. Tom Wolf (D) also called for Ellis to step down.
Vacancies in the Pennsylvania General Assembly are filled by special election. The presiding officer of the House must call for the election. The state constitution does not establish a timetable for special legislative elections.
Two months into 2019, and state legislatures nationwide have taken early action on public-sector union policy in the states, responding either directly or indirectly to the Supreme Court’s decision last summer in Janus v. AFSCME. In Janus, the high court ruled that public-sector unions cannot require non-member employees to pay agency fees to cover the costs of non-political union activities.
As of March 1, legislatures in 29 states had introduced 82 bills relevant to public-sector union policy. Of these 82 bills, 45 were sponsored by Democrats and 29 by Republicans; the remainder were sponsored by bipartisan groups or committees. Of these 82 bills, two had passed lower chambers and three had died. The remainder were either in committee or awaiting a committee assignment.
More about Janus: Generally, members of an employee union pay fees to that union. These fees support the union’s activities, which can include collective bargaining and contract administration, as well as political activities, such as lobbying. Some public-sector employees do not wish to join a union, and some are opposed to unions’ political activities. In 1977, the Supreme Court ruled in Abood v. Detroit Board of Education that employees cannot be required to give financial support to a union’s political activities. However, the court found that it was not a violation of employees’ rights under the First Amendment to the U.S. Constitution to require them to pay fees to support union activities from which they benefit, such as collective bargaining. It is this ruling that was overturned by Janus, which held that such fees are not constitutional.
On February 26, 2019, a three-judge panel of the United States Court of Appeals for the Ninth Circuit found that a Washington state policy granting exclusive bargaining rights to a union did not violate workers’ First Amendment rights.
In 2006, the state authorized child care providers working under a state-subsidized program to select an exclusive representative for the purposes of collective bargaining. The workers chose Service Employees International Union Local 925. Workers were not required to join the union, but SEIU Local 925 was granted the exclusive right to represent this class of workers. The plaintiff in the case, child care provider Katherine Miller, alleged that this practice, in light of Janus, violated her First Amendment rights because it authorized SEIU Local 925 to speak and negotiate on her behalf without her express consent.
The appeals court panel was comprised of Judges Susan P. Graber, M. Margaret McKeown, and Morgan Christen. President Bill Clinton (D) appointed both Graber and McKeown to the court in 1998. President Barack Obama (D) appointed Christen to the court in 2011.
How do primaries in your state work?
The first statewide primary of 2019 is approaching – here’s a rundown of five facts about primary systems.
1. An open primary is any primary election in which a voter either does not have to formally affiliate with a political party in order to vote in its primary or can declare his or her affiliation with a party at the polls on the day of the primary even if the voter was previously affiliated with a different party.
In 22 states, at least one party conducts open primaries. Is your state one of them? Click the link to find out.
2. In 39 states, a candidate needs to win only a plurality (as opposed to a majority) of all votes cast in order to be declared the winner of a primary. Is your state one of them? Click the link to find out.
3. Generally, political parties use primary elections either to narrow the field of candidates for a given elective office or to determine their nominees in advance of a general election. In seven states, however, political parties can nominate candidates for some offices for the general election directly, without conducting a primary election. Is your state one of them? Click the link to find out.
4. A closed primary is a type of primary election in which a voter must affiliate formally with a political party in advance of the election date in order to participate in that party’s primary. In 14 states, at least one political party conducts closed primaries. Is your state one of them? Click the link to find out.
5. In eight states, a candidate must win a majority of all votes cast (i.e., 50 percent plus at least one) in order to be declared the winner of a primary election. Is your state one of them? Click the link to find out.
On February 13, 2019, Judge Carlton W. Reeves, of the United States District Court for the Southern District of Mississippi, issued an order striking down the state legislative map for Mississippi State Senate District 22.
Judge Reeves ruled that the district constituted a violation of the Voting Rights Act by denying racial minorities “an equal opportunity to participate in the political processes and to elect candidates of their choice.” In the two-page order, Reeves advised the state legislature of its right to the first opportunity to draft new maps for District 22 and any adjoining districts that might be affected as part of the redistricting process. Reeves also suggested that the legislature might extend the March 1 qualification deadline for candidates in District 22 and any other affected districts. Reeves, appointed in 2010 by Pres. Barack Obama (2013), noted that a full opinion in the case, Thomas v. Bryant, would be forthcoming.
In 2015, Eugene Clarke (R) won re-election to District 22 with 53.8 percent of the vote.
The Mississippi State Senate is one of seven legislative chambers nationwide that will conduct elections in 2019. All 52 Senate seats will be up for election. The primary is scheduled to take place on August 6, 2019. The general election will take place on November 5, 2019.
According to a January 29, 2019, report by The Washington Post, Americans received approximately 26.3 billion automated phone calls in 2018, a 46 percent increase over the total number of automated calls received in 2017. The increase can be attributed in part to a federal appellate court ruling that expanded the types of equipment that can be used legally to make automated calls.
On March 16, 2018, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit issued its ruling in ACA International v. Federal Communications Commission, striking down a rule promulgated by the Federal Communications Commission (FCC) regarding the types of equipment that can be used for making automated phone calls. The Telephone Consumer Protection Act (TCPA), enacted in 1991, granted the FCC the authority to interpret and enforce the law’s restrictions against the use of certain kinds of automated dialing equipment. In 2015, the FCC issued an order that, among other things, classified devices capable of being transformed into automated dialing systems via the installation of apps as devices subject to the restrictions of the TCPA. The court found that this classification metric was overly broad.
On February 5, 2019, the New Mexico Supreme Court dismissed a challenge to the legality of closed primaries in the state. The initial suit was brought by former attorney general Paul Bardacke (D), who argued that New Mexico’s closed primary process serves private organizations (in this case, political parties) in violation of a state law prohibiting the use of public money to benefit private organizations. The state supreme court did not address this argument in its order, which summarily dismissed the challenge.
A closed primary is a type of primary election in which a voter must affiliate formally with a political party in advance of the election date in order to participate in that party’s primary. In 14 states, including New Mexico, at least one political party conducts closed primaries for congressional and state-level offices. In 11 of these states, including New Mexico, all political parties conduct closed primaries. In the 2016 presidential election cycle, political parties in 27 states utilized closed primaries and/or caucuses as part of the presidential nominating process.
In New Mexico, state supreme court justices are appointed by the governor, who selects from a list of candidates recommended by a commission. After being appointed, the justice must stand in the next partisan election in order to retain his or her seat.

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