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RELIST WATCH ByJohn Elwood on Feb 18, 2021 at 4:39 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

Even after nearly a month off since the last installment, this weeks round-up is going to be abbreviated because of the press of business. There are about 489 cases that have been scheduled for resolution at this Fridays conference. Only four of those cases are new relists. They concern two basic issues.

The first three cases All Saints Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, 20-534, The Episcopal Church v. The Episcopal Diocese of Fort Worth, 20-536, and Schulz v. Presbytery of Seattle, 20-261 are all examples of something that the Supreme Court used to see a lot of, but seem like theyve been in someone shorter supply recently: property disputes pitting a breakaway faction against a national church for control of property. These cases involve how to apply two lines of case law, both involving leading cases with Jones in the caption. Under one line of authority, exemplified by the landmark 1872 case Watson v. Jones, civil courts adjudicating church property disputes essentially defer to the highest church authorities about who owns the property. But under 1979s Jones v. Wolf, the Supreme Court, by a 5-4 vote, held that courts could adjudicate such cases applying neutral principles of law to determine which party the property deeds, statutes, and church governing documents indicated the property belonged to.

The two cases brought by Episcopal entities involve a Fort Worth, Texas, sanctuary and rectory. The Texas Supreme Court held it belonged to the withdrawing faction rather than the national organization. The Presbyterian case involves church property in Seattle, Washington apparently, the very last downtown Seattle property not occupied by a coffee shop or outdoor clothing store. The Washington Court of Appeals held that courts should defer to the Presbyterian Church U.S.A.s designee, who said the property belonged to the group still affiliated with the national organization.

The national Episcopal Church and affiliated entities explicitly say that if the Texas decision is correct, Wolf should be overruled. The petitioners in the Seattle case, the trustees of a congregation that disaffiliated from the national Presbyterian church, clearly suggest that Watson is not good law. It will be interesting to see if the Supreme Court takes up an issue that has been percolating for almost a decade. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioners in the two cases involving the Episcopal Church.]

That brings us to the second issue, which involves the Armed Career Criminal Act, a three strikes-type sentencing enhancement whose legendary ambiguity has spawned so much litigation that, as Ive observed before, it can sometimes seem as if there are more Armed Career Criminal Act appeals than there are armed career criminals. The ACCA sentencing enhancement applies only if the defendant has three predicate convictions that were committed on occasions different from one another. 18 U.S.C. 924(e)(1). The question in Wooden v. United States, 20-5279 is: When a criminal defendant commits a series of offenses sequentially such as breaking into 10 different mini-storage units one after another (which is just what petitioner William Dale Wooden did one evening) were the offenses committed on occasions different from one another for purposes of the ACCA enhancement?

Some circuits say that offenses are automatically committed on different occasions if they are separated in time by even a short interval; thus the U.S. Court of Appeals for the 6th Circuit said Wooden had 10 prior offenses committed on different occasions because he burgled (thats right, I said burgled) 10 mini-storage units in a row, and he could not have been in more than one unit at the same time. Other circuits say that the offenses have to be treated as the same occasion unless they arose under different opportunities or circumstances meaning the offenses were part of different criminal episodes.

The Wooden petition also presents a second question: whether officers who use deception to gain access to constitutionally protected areas have violated the Fourth Amendment. The police officer here asked if he could step inside Woodens home to stay warm, but his real goal was to track down a fugitive. Once inside, he found a gun that Wooden shouldnt have possessed. The 6th Circuit held that was not a constitutional violation. That arguably splits from a decision of the U.S. Court of Appeals for the 9th Circuit. [Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is counsel to Wooden. I am not involved in the case.]

Thats all for this week. Stay safe (and warm) out there!

All Saints Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, 20-534Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of petitioners in this case.Issue: Whether the Texas Supreme Courts decision awarding the sanctuary and rectory of the petitioner, All Saints Episcopal Church (Fort Worth), to a dissident faction in contravention of the will of petitioners parishioners and an express-trust provision is consistent with the free exercise and establishment clauses.(relisted after the Jan. 22 conference)

The Episcopal Church v. The Episcopal Diocese of Fort Worth, 20-536Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.Issues: (1) Whether the First Amendment requires courts to enforce express trusts in church governing documents (as some jurisdictions hold, in line with Jones v. Wolfs first safeguard), or whether state law may render such trusts unenforceable (as others hold); (2) whether the First Amendment requires courts to defer to churches on questions of polity (as some jurisdictions hold, in line with Jones second safeguard), or whether courts may apply state law to determine the structure of a church (as others hold); and (3) whether the neutral-principles approach may constitutionally be applied either prospectively or retroactively to resolve church-property disputes.(relisted after the Jan. 22 conference)

Schulz v. Presbytery of Seattle, 20-261Issue: Whether, in a dispute between a local congregation and its former denomination over ownership of property to which the local congregation holds legal title, the First Amendment permits courts to apply a rule of absolute deference to assertions of ownership by the denomination.(relisted after the Jan. 22 conference)

Wooden v. United States, 20-5279Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is counsel to the petitioner. I am not involved in the case.Issues: (1) Whether a police officers use of deception to gain entry to a constitutionally protected area violates the Fourth Amendment; and (2) whether offenses that were committed as part of a single criminal spree, but sequentially in time, were committed on occasions different from one another for purposes of a sentencing enhancement under the Armed Career Criminal Act.(relisted after the Jan. 22 conference)

Biden v. Knight First Amendment Institute, 20-197Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences)

Chipotle Mexican Grill v. Scott, 20-257Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are similarly situated for purposes of the collective-action provision of the Fair Labor Standards Act.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle]

United States v. Vaello-Madero,20-303Issue:Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income a program that provides benefits to needy aged, blind and disabled individuals in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.(relisted after the Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences)

Texas v. California, 220153Issue: Whether Californias sanctions against Texas and Texans prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders are born of religious animus and violate the Constitutions privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Dobbs v. Jackson Womens Health Organization, 19-1392Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects womens health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed underPlanned Parenthood v. Caseys undue burden standard orWhole Womans Health v. Hellerstedts balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects womens health from the dangers of late-term abortions.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Massachusetts Lobstermens Association v. Ross, 20-97Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Acts smallest area requirement, including designating ocean monuments larger than most states, by vaguely referencing resources or an ecosystem as the objects to be protected.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Harris v. Maryland, 20-101Issue: Whether, when preindictment delay has caused actual prejudice to the accuseds ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Johnson v. Precythe, 20-287Issues: (1) WhetherBucklew v. Precytheestablished a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiffs opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the states proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuits refusal to permit Ernest Johnson, after the Supreme Courts decision inBucklewwas issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

United States v. Tsarnaev, 20-443Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaevs capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaevs case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaevs trial by excluding evidence that Tsarnaevs older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Republican Party of Pennsylvania v. Boockvar, 20-542Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assemblys plenary authority to direct [the] Manner for appointing electors for president and vice president under Article II of the Constitution, as well as the assemblys broad power to prescribe [t]he Times, Places, and Manner for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

Corman v. Pennsylvania Democratic Party, 20-574Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assemblys plenary authority to direct [the] Manner for appointing electors for president and vice president under Article II of the Constitution, as well as the assemblys broad power to prescribe [t]he Times, Places, and Manner for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.(relisted after the Jan. 8, Jan. 15 and Jan. 22 conferences)

McCoy v. Alamu, 20-31Issues: (1) Whether a prison official is entitled to qualified immunity if he gratuitously assaults a prisoner but not every factor fromHudson v. McMillianfor when the use of excessive physical force may constitute cruel and unusual punishment favors the plaintiff, as the U.S. Court of Appeals for the 5th Circuit held here, or whether the plaintiff can nonetheless defeat qualified immunity, as the U.S. Courts of Appeals for the 4th, 6th, 9th and 11th Circuits have held; and (2) whether a prison official who assaults a prisoner without justification is entitled to qualified immunity if past precedent involved different mechanisms of force, as the 5th Circuit implicitly held here, or whether precedent concerning unprovoked assaults by one weapon can clearly establish the unconstitutionality of unprovoked assaults by other weapons, as the 4th and 9th Circuits have held.(relisted after the Jan. 15 and Jan. 22 conferences)

Bridge Aina Lea, LLC v. Hawaii Land Use Commission, 20-54Issues: (1) Whether, as the U.S. Court of Appeals for the 9th Circuits extensive, published ruling eliminates property owners ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including the Supreme Court, the Supreme Court needs to clarify the rules for recovery for temporary regulatory takings; (2) whether, in light of the confusion in the lower courts as to the application of the factors fromPenn Central Transportation Co. v. New York City to the point where it has become almost impossible for property owners to prevail on this theory the Supreme Court should reexamine and explain howPenn Centralanalysis is supposed to be done or dispensed with; (3) whether, in light of the 9th Circuits holding that almost no value loss no matter how great can ever establish a temporary taking under eitherLucas v. South Carolina Coastal CouncilorPenn Central, it is necessary for the Supreme Court to clarify the standards; and (4) whether, in light ofPenn Centrals clear direction that cases like this are to be determined ad hoc, on their individual facts, and the Supreme Courts approval inCity of Monterey v. Del Monte Dunes, that takings liability be decided by a jury, appellate courts need to stay their hands (as mandated by the Seventh Amendments re-examination clause) when as here reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings.(relisted after the Jan. 15 and Jan. 22 conferences)

American Medical Association v. Azar, 20-429Issues: (1) Whether the Department of Health and Human Services rule for the Title X family planning program which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that all pregnancy counseling under Title X shall be nondirective; and (3) whether the rule violatesSection 1554 of the Affordable Care Act, which requires that HHS shall not promulgate any regulation that harms patient care in any one of six ways, including by interfer[ing] with communications between a patient and her provider.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Department of Homeland Security v. New York, 20-449Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained inImmigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Securitys final rule interpreting the statutory term public charge and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Mayorkas v. Cook County, Illinois, 20-450Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained inImmigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Securitys final rule interpreting the statutory term public charge and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Cochran v. Mayor and City Council of Baltimore, 20-454Issues: (1) Whether the Department of Health and Human Services rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agencys statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.(relisted after the Jan. 8 and Jan. 22 conferences, but not relisted for the Jan. 15 conference)

Oregon v. Cochran, 20-539Issues: (1) Whether the Department of Health and Human Services final rule which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information violates appropriations statutes requiring that all pregnancy counseling in the Title X program shall be nondirective; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating any regulation that creates unreasonable barriers to obtaining appropriate medical care, impedes timely access to such care, interferes with patient-provider communications regarding a full range of treatment options, restricts providers from disclosing all relevant information to patients making health care decisions, or violates providers ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.(relisted after the Jan. 8 and Jan. 22 conferences; directed to file but not relisted for the Jan. 15 conference)

More:
Disputes over church property and ACCA ambiguity - SCOTUSblog - SCOTUSblog

WETHERSFIELD The father of an 18-year-old killed by a town police officer in 2019 has filed a wrongful death lawsuit and claims his sons civil rights were violated.

The lawsuit names the town of Wethersfield and former Wethersfield Police Officer Layau Eulizier as defendants in the April 2019 shooting death of Anthony Vega-Cruz.

Gary Evans, town manager for Wethersfield, said the town has not yet been served, adding that we wont take any action until or unless that happens.

The suit seeks an unspecified amount of damages for Jose Vega-Cruz, the teens father, and attorney fees. It was filed last week by nationally-renowned civil rights and personal injury attorney Ben Crump and his legal team.

Eulizier shot and killed Anthony Vega-Cruz during a traffic stop on Silas Deane Highway on April 20, 2019. Nearly a year later, the shooting was ruled justified under Connecticut law by the States Attorney for the Judicial District of Hartford.

The shooting later sparked legislation preventing police from positioning themselves in front of a fleeing vehicle, and prohibiting officers from shooting into the vehicle unless there is an imminent threat of death.

Euliziers actions and inactions ... heightened the risk of a deadly encounter, the lawsuit alleges. Eulizier failed to use reasonable caution in attempting to apprehend (Vega-Cruz).

Vega-Cruz was killed after police tried to pull him over for illegal window tints and a license plate belonging to a different vehicle with a suspended registration, according to an incident report.

According to the report, Vega-Cruz pulled over, but then sped away as the officer got out of his car, leading to a chase.

Eulizier, who had been getting food when the call came over the radio, responded and struck the front end of the car with his police cruiser, the report said.

Eulizier then got out of his cruiser and stood in front of Vega-Cruzs vehicle with his weapon drawn, according to the report and video footage of the incident.

As the vehicle reversed, the officer fired two shots, one of which struck Vega-Cruz in the head, the report said. He was later pronounced dead at Hartford Hospital.

The suit also claims that either the Wethersfield Police Department had an inadequate policy and training with regards to shooting at moving and occupied vehicles, or Eulizier violated the Wethersfield Police Departments policy and committed a felony.

The lawsuit alleges Euliziers use of deadly force was unreasonable, and claims he acted with a conscious and reckless disregard of the just rights or safety of Vega-Cruz.

A reasonable officer under similar circumstances would not have reasonably believed that the use of deadly force was necessary to effect an arrest or prevent the escape from custody of a person whom he reasonably believes to have committed an offense, or to defend himself or a third person from the use of imminent physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent escape, the suit claims. In other words, it was unreasonable for Eulizier to believe that the use of deadly force against (Vega-Cruz) was necessary to defend himself of a third person.

According to the lawsuit, Euliziers use of his cruiser to stop the Infiniti violated Vega-Cruzs rights against unreasonable seizure under the Fourth Amendment and 14th Amendment. The suit also claims Eulizier did not immediately provide medical care to Vega-Cruz.

Eulizier resigned from the Wethersfield Police Department soon after the states attorneys report absolving him in the shooting was released. In his resignation letter, he maintained the shooting was in self-defense, the radio station WNPR reported at the time.

Read more from the original source:
Father of CT teen killed by police files wrongful death lawsuit - CTPost

HELENA Senator Ken Bogner, R-Miles City, today introduced a bill that would submit a constitutional amendment to the voters of Montana to protect the privacy of their electronic data and communications.

Article II, Section 11 of the Montana State Constitution already protects Montanans persons, papers, homes, and effects from unreasonable searches and seizures, similar to the Fourth Amendment protections of the U.S. Constitution.

Senate Bill 203 would add Montanans electronic data and communications to that list of places and items that cannot be searched or seized by the government without a warrant based on probable cause.

Senate Bill 203 is about updating Montanas Constitution to reflect life in the 21st Century and make it explicitly clear that our digital information is protected from unreasonable government searches and seizures, Bogner said. Today, so much of our private livesfinancial information, communication with family and friends, medical information, and much, much moreis contained on and transferred electronically among many devices and computer systems. The government should need a warrant before accessing or gathering Montanans electronic data or communications.

I am proud to watch Montana continue to expand the privacy rights of our citizens. Our nations leaders in Washington, D.C., could learn a lesson or two from the Montana Legislature on how to work across the aisle and stand up to unchecked government surveillance, said former state Rep. Daniel Zolnikov, who became known for his work on protect digital privacy during his time in the Legislature. Montana continues to find a better balance between using our digital technologies and protecting our Fourth Amendment rights.

Montanans are overwhelmingly concerned about the privacy of their personal information and they want more protections from mass government surveillance. Lawmakers ought to listen to them, said Kendall Cotton, President and CEO of the Frontier Institute, a Montana-based think tank. Updating Montanas Constitution with expanded privacy protections will send a strong message that state government is making our rights a priority.

Digital devices are the modern equivalent of your home and should be treated with the same respect. Digital rights are just as important as physical rights; we just need to update the law to account for this, said Eric Fulton, a fellow with the Frontier of Privacy initiative by the Frontier Institute. Tech companies are exploiting everyday citizens because the Founders didnt foresee the digital era. Its time to update the law to match their intent. The Montana Constitution protects your privacy in your home. It should protect your digital home as well.

Go here to see the original:
Proposed constitutional amendment will protect Montanan's privacy in the digital age - Sidney Herald Leader

Screenshot Submitted

The final round of Altheimer Moot Court Competition.

FAYETTEVILLE, Ark. Third-year law students Nate Arrington and Hannah Hines successfully represented their client against second-year students Dalton Cook and Tristen Cross in the final round of the 2021 Ben J. Altheimer Moot Court Competition. The competition took place on Feb. 11 via Zoom.

Hines was named best oralist of the competition and Arrington and Hines were recognized for best brief.

The students presented their cases before the Hon. Lavenski Smith (J.D. '87), chief judge of the Eighth Circuit Court of Appeals; the Hon. Kristine Gerhard Baker (J.D. '96) of the United States District Court for the Eastern District of Arkansas; and the Hon. Jane L. Kelly, also of the Eighth Circuit Court of Appeals.

This year's case John J. Schmidt v. United States was about whether a law enforcement officer had conducted an unreasonable search of an arrestee's apartment in violation of the Fourth Amendment. This was because the officer had swiped a key fob in front of multiple apartments until she found the arrestee's apartment prior to getting a search warrant.

"All the competitors represented our school to the judges and our community really well," said Ashley Spinazze, co-chair of the 2021 Ben J. Altheimer Moot Court Competition. "They showed the level of preparation and professionalism of those arguing before the Courts of Appeals."

Caleb Ward, co-chair of the 2021 Ben J. Altheimer Moot Court Competition said that they were especially impressed with the second-year teams that participated. "Students usually participate in oral arguments during the spring of their first year, however, those arguments had been cancelled due to the pandemic and the second-year students came into the competition without ever having done this before."

The annual competition, named after Arkansas attorney and philanthropist Ben J. Altheimer, is hosted by the University of Arkansas School of Law Board of Advocates. The student-run board organizes three internal competitions annually the William H. Sutton Barrister's Union Trial Competition, the Altheimer Competition andClient Advocacy Competitions either a negotiations or client counseling competition which lead to the selection of moot court, trial and dvocacy competition teams that travel to regional and national competitions.

About the University of Arkansas: As Arkansas' flagship institution, the U of A provides an internationally competitive education in more than 200 academic programs. Founded in 1871, the U of A contributes more than $2.2 billion to Arkansas' economy through the teaching of new knowledge and skills, entrepreneurship and job development, discovery through research and creative activity while also providing training for professional disciplines. The Carnegie Foundation classifies the U of A among the top 3% of U.S. colleges and universities with the highest level of research activity. U.S. News & World Report ranks the U of A among the top public universities in the nation. See how the U of A works to build a better world at Arkansas Research News.

Original post:
Arrington and Hines Win 2021 Altheimer Moot Court Competition - University of Arkansas Newswire

Prior to a 10-2 vote for House Bill 1140, testimony had elicited accusations the measure was a "poacher's bill," but the bill's proponents, namely, the South Dakota Department of Game, Fish, and Parks and Lt. Gov. Larry Rhoden, said the measure would build better relationships between landowners and game wardens, who now would need permission to enter private lands, save when an imminent crime is happening.

"Our best line of defense...is each other," said said Kevin Robling, interim secretary for GFP, who tried to assuage lawmakers that limiting conservation officers' access to private lands would not impede efforts to protect wildlife.

But a number of opponents accused the bill of paving the way for bad actors to thwart the game wardens charged with enforcing the state's hunting and fishing rules. Some even used the dreaded "P" word.

George Vandel, representing the South Dakota Waterfowl Association, noted what others roundly acknowledged that 80% of South Dakota's land is privately owned, and that historic efforts to build back migratory bird populations popular for hunting is rooted in the strong teeth of conservation officers.

"It (HB 1140) removes compliance and opens South Dakota up to be a poacher's paradise," said Vandel.

Currently under South Dakota law, a state game warden has full access to a field even one privately owned through what's often referred to as the "open fields doctrine," namely law enforcement's ability to search without a warrant the non-residential areas of private property without violating the Fourth Amendment.

But on Tuesday, many landowners cried foul, with one testifier saying such a doctrine "normalizes trespassing."

"As far as my land, I think I do have the right to know who's out there doing it," said Robert Johnson, a landowner in Harding County. " I never have had a reason to deny a game warden (access)."

Bill opponents objected to the measure specifically carving away the open-fields doctrine for game wardens but leaving it intact for other law enforcement officers, including the county sheriff or the U.S. Fish and Wildlife Services agents.

But Committee Chair Marty Overweg, a New Holland Republican, wondered if agents could approach him sitting in his pick-up on his own property without just cause.

"Is he legal just to drive on my land and see what I am doing?" asked Overweg.

Ultimately, many testifiers disagreed over to what extent the bill which does allow for game wardens to enter private property "without permission" when suspecting a crime or to "dispatch crippled or distressed wildlife" would incentivize illegal behavior among hunters and fishers.

"It would be a great disservice to assume you can manage our resources based on property boundaries," said testifier Zachary Hunke, who noted game animals "travel, migrate, swim or move" between private and property boundaries at ease.

But Robling, who noted there had been "no specific instance" that compelled the bill's appearance this session, repeated his promise that the measure only codifies current policy.

According to the latest year on record, South Dakota game wardens handed out over 500 hunting violations in 2019.

The bill now proceeds to a vote by the full House.

Read more here:
South Dakota committee OKs bill requiring conservation officers to get prior permission to go onto private land | The Mitchell Republic - The Daily...