On tap this week, SCOTUS hears five cases to start off its 2019-2020 term

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Happy Saturday! We are back with a full issue covering the launch of the new Supreme Court term, the latest presidential news, and a bit about Congress. Let's dive in! 

Read the full Tap online ([link removed])

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** TWELVE DEMOCRATIC PRESIDENTIAL CANDIDATES TO DEBATE IN OHIO
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* Twelve candidates will participate in the fourth Democratic presidential primary debate ([link removed]) in Westerville, Ohio, on October 15. It will feature the most candidates on stage in a single presidential primary debate; Eleven Republican candidates debated on September 16, 2015 ([link removed]) .

* The following candidates will participate: Joe Biden, Cory Booker, Pete Buttigieg, Julián Castro, Tulsi Gabbard, Kamala Harris, Amy Klobuchar, Beto O’Rourke, Bernie Sanders, Tom Steyer, Elizabeth Warren, and Andrew Yang.

* CNN and _The New York Times_ are hosting the debate, which will take place at Otterbein University. Erin Burnett, Anderson Cooper, and Marc Lacey will moderate the event. 

* Candidates must have received 2% support or more in four qualifying national or early state polls—Iowa, New Hampshire, South Carolina, and/or Nevada—publicly released between June 28, 2019, and two weeks before the debate. Candidates also needed to have received donations from at least 130,000 unique donors and a minimum of 400 unique donors per state in at least 20 states.

* Candidates who did not qualify for this debate can still qualify for the next one, which has different qualifying criteria ([link removed]) . The Democratic National Committee announced this week that the fifth primary debate will take place in Georgia on November 20.

The previous Democratic debate ([link removed]) was held on September 12 in Houston and featured 10 candidates. Since then, one Democratic candidate—Bill de Blasio—has withdrawn from the race.

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** SUPREME COURT BEGINS 2019-20 TERM, HEARS CASES REGARDING ATTORNEYS' FEES, INSANITY PLEAS, DISCRIMINATION, AND UNANIMOUS VERDICTS
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** OCTOBER 7
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* In _Kahler v. Kansas ([link removed]) _, James Kahler was convicted of capital murder and sentenced to death. According to Oyez ([link removed]) , Kansas law prohibits a jury from considering mental disorders as a criminal defense "insofar as it shows 'that the defendant lacked the mental state required as an element of the offense charged.'"

On appeal, Kahler argued the prosecution violated his right to a fair trial. The Kansas Supreme Court rejected Kahler's argument, affirming his conviction and sentence. Kahler appealed to the U.S. Supreme Court, arguing Kansas law violates the Eighth Amendment’s prohibition of cruel and unusual punishments and the Fourteenth Amendment’s due process guarantee.

THE ISSUE: Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

* _Peter v. NantKwest ([link removed]) _ concerns whether applicants challenging a patent rejection under Section 145 of the U.S. Patent Act (35 U.S.C. § 145) must pay attorneys' fees for the United States Patent and Trademark Office (PTO).

Section 145 authorizes an applicant to challenge the PTO's rejection of a patent application in federal district court. The law stipulates, "All the expenses of the proceedings shall be paid by the applicant."

The PTO rejected Dr. Hans Klingemann and NantKwest, Inc.'s, patent application. The Patent Trial and Appeal Board affirmed the rejection. Klingemann challenged the rejection under 35 U.S.C. § 145 in federal district court. The district court and the Federal Circuit Court of Appeals affirmed the PTO's patent rejection. 

The PTO filed a motion for reimbursement of attorneys' fees under Section 145, which the district court denied. On appeal, a divided Federal Circuit panel reversed the district court's judgment. Sitting en banc, the Federal Circuit then vacated the panel's decision and affirmed the district court's initial rejection of the motion for attorneys' fees reimbursement. 

The PTO appealed to the U.S. Supreme Court, arguing the Federal Circuit's en banc ruling "contravenes the ordinary meaning of 'expenses' and is inconsistent with Section 145’s history and purpose."

THE ISSUE: Whether the phrase "[a]ll the expenses of the proceedings" in 35 U.S.C. 145 encompasses the personnel expenses the PTO incurs when its employees, including attorneys, defend the agency in Section 145 litigation.

* In _Ramos v. Louisiana ([link removed]) _, Evangelisto Ramos was convicted of murder and sentenced to life imprisonment on a 10 to 12 jury verdict. He appealed his conviction to the Louisiana Fourth Circuit Court of Appeal, arguing his conviction by a non-unanimous jury violated his federal constitutional rights. The court of appeal affirmed Ramos' conviction and sentence. The Louisiana Supreme Court denied review.

THE ISSUE: Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?

OCTOBER 8

* _Bostock v. Clayton County, Georgia ([link removed]) _ is consolidated with _Altitude Express Inc. v. Zarda ([link removed]) _.

Gerald Bostock was an employee of Clayton County, Georgia. After his employment was terminated, Bostock sued the county for discrimination because of sexual orientation. Bostock argued his termination violated Title VII of the Civil Rights Act of 1964. The federal district court dismissed the case and, on appeal, the 11th Circuit affirmed the district court's ruling.

THE ISSUE: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination "because of ... sex" within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

* _R.G. & G.R. Harris Funeral Homes v. EEOC ([link removed]) _ also concerns Title VII of the Civil Rights Act of 1964.

Aimee Stephens, an employee at R.G. & G.R. Harris Funeral Homes, Inc., was born biologically male. Stephens' employment was terminated after she informed the funeral home's owner that she would transition from male to female. Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), which charged the funeral home with violating Title VII of the Civil Rights Act of 1964. The district court granted summary judgment to the funeral home. On appeal, the 6th Circuit reversed the district court's ruling and granted summary judgment to the EEOC.

THE ISSUE: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under _Price Waterhouse v. Hopkins_.
[link removed]
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** SUPREME COURT WILL HEAR ORAL ARGUMENT IN FOUR CASES THIS WEEK
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** OCTOBER 15
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* _Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC ([link removed]) _, concerns the Appointments Clause of the United States Constitution. The case is consolidated with Aurelius Investment, LLC v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, LLC, United States v. Aurelius Investment, LLC, and UTIER v. Financial Oversight and Management Board for Puerto Rico.

In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. After the board began proceedings in 2017, Aurelius Investment, LLC, ("Aurelius") and the Unión de Trabajadores de la Industria Eléctrica y Riego ("UTIER") challenged the board's authority in federal district court, arguing the board members' appointment violated the Appointments Clause of the U.S. Constitution. The district court ruled against Aurelius and UTIER. On appeal, the 1st Circuit Court of Appeals reversed the district court in part, holding the board members "must be, and were not, appointed in compliance with the Appointments Clause."

THE ISSUE: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.

OCTOBER 16

* In Kansas v. Garcia ([link removed]) , Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara were each convicted of identity theft in Johnson County, Kansas. In each of the cases, prosecutors used Social Security numbers found on I-9 and W-4 employment forms. Garcia, Morales, and Ochoa-Lara each appealed their convictions, arguing that the Immigration Reform and Control Act (IRCA) preempted their prosecution. On appeal, the Kansas Supreme Court reversed the three convictions.

THE ISSUE: (1) Whether IRCA expressly preempts states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and Social Security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications. (2) Whether the Immigration Reform and Control Act preempts Kansas' prosecution of Garcia, Morales, and Ochoa-Lara.

* In _Rotkiske v. Klemm ([link removed]) _, Kevin Rotkiske accumulated credit card debt between 2003 and 2005. His bank referred his account to Klemm & Associates (Klemm) for collection. Someone accepted service for a debt collection lawsuit on Rotkiske's behalf without his knowledge. Klemm obtained a default judgment of approximately $1,500. Rotkiske sued Klemm for violating the Fair Debt Collection Practices Act (FDCPA), arguing the statute of limitations to file a suit begins when the plaintiff knows of his injury. On appeal, the 3rd Circuit rejected Rotkiske's argument, affirming the ruling of the Eastern District of Pennsylvania and holding that the statute of limitations begins to run when the defendant allegedly violates the FDCPA.

THE ISSUE: Whether the "discovery rule" applies to toll the one year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., as the 4th and 9th Circuits have held but the 3rd Circuit (sua sponte en banc) has held contrarily.

* In _Mathena v. Malvo ([link removed]) _, Lee Boyd Malvo was sentenced in 2004 to four terms of life imprisonment without parole. He had been convicted of committing homicides when he was 17 years old. Between 2005 and 2016, SCOTUS issued a series of decisions holding that juvenile defendants could not be sentenced to life imprisonment without parole. SCOTUS also held the new sentencing rules were retroactive. After Malvo filed applications for writs of habeas corpus relief, the district court vacated the four terms of life imprisonment and remanded the case for resentencing. On appeal, the 4th Circuit affirmed the district court's ruling.

THE ISSUE: Did the 4th Circuit err in concluding that a SCOTUS decision addressing whether a new constitutional rule announced in an earlier SCOTUS decision applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

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** REP. LOWEY (D-N.Y.) BECOMES SIXTH DEMOCRATIC HOUSE MEMBER TO ANNOUNCE SHE'S NOT RUNNING FOR RE-ELECTION IN 2020
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* Rep. Nita Lowey ([link removed]) (D-N.Y.) announced that she would not seek re-election ([link removed]) in 2020. She was first elected to Congress in 1988. She currently represents New York's 17th Congressional District but has also represented the 18th and 20th Districts. Lowey last faced a Republican challenger in 2014, when she defeated Chris Day 54% to 42%. 

* Lowey is the sixth Democratic member of the U.S. House to announce that she would not be seeking re-election in 2020, joining Jose Serrano (NY-15), Ben Ray Lujan (NM-3), Dave Loebsack (IA-2), Susan Davis (CA-53), and Joseph Kennedy III (MA-4). Seventeen Republican members of the U.S. House have also announced that they wouldn’t seek re-election.

* The current partisan composition of the House is 235 Democrats, 197 Republicans, one independent, and two vacancies. Fifty-five members of Congress did not run for re-election in 2018.

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** COMMISSION ON PRESIDENTIAL DEBATES ANNOUNCES 2020 GENERAL ELECTION DEBATE SCHEDULE 
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* In a news release ([link removed]) , the Commission on Presidential Debates ([link removed]) (CPD) announced the dates and locations for the 2020 general election debates. The CPD has sponsored every presidential and vice presidential general election debate since 1988.

* Three presidential debates are scheduled for the following dates in 2020: September 29 at the University of Notre Dame in South Bend, Indiana, October 15 at the University of Michigan in Ann Arbor, and October 22 at Belmont University in Nashville, Tennessee. A vice presidential debate will be held on October 7, 2020, at the University of Utah in Salt Lake City. 

* The debates will be 90 minutes in length and start at 9:00 p.m. ET. Additional information, such as the debate format and moderators, will be released in 2020.

* The CPD also announced its criteria for inviting candidates to participate in these debates. Candidates will be invited if they are constitutionally eligible, provide evidence of ballot access in enough states to win an Electoral College majority, and demonstrate 15% support in national polling.

[link removed]
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** WARREN LEADS DEMOCRATIC PRESIDENTIAL CANDIDATES IN BALLOTPEDIA PAGEVIEWS FOR 2ND CONSECUTIVE WEEK
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* Elizabeth Warren's campaign page on Ballotpedia received 3,071 views for the week of September 29-October 5. Warren's pageview figure represents 10.5% of the pageviews for all Democratic candidates during the week. Andrew Yang had 10.1% of the pageviews for the week, followed by Joe Biden with 9.8%.

* Each week, we report ([link removed]) the number of pageviews received by 2020 presidential campaigns on Ballotpedia. These numbers show which candidates are getting our readers' attention.

* The only Democratic candidate to receive more pageviews last week than the week before was Tom Steyer, whose pageviews increased by 33.6%.

* Andrew Yang remains the leader in overall pageviews this year with 124,790. He is followed by Pete Buttigieg with 120,289 and Kamala Harris with 109,481. Joe Biden was ranked fourth with 108,884 pageviews. Elizabeth Warren had 102,660 overall pageviews as of October 5, making her the fifth Democratic candidate to receive 100,000 pageviews this year.

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** IS CONGRESS IN SESSION?
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* Both the Senate and the House will be in session next week. Click here ([link removed]) to see the full calendar for the first session of the 116th Congress.

 
** WHERE WAS THE PRESIDENT LAST WEEK?
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* On Monday, Trump signed the U.S.-Japan Trade Agreement and U.S.-Japan Digital Trade Agreement.
* On Tuesday, Trump received his intelligence briefing and met with Acting Commissioner of Customs and Border Protection Mark Morgan.
* On Wednesday, Trump signed Executive Orders on transparency in Federal guidance and enforcement.
* On Thursday, Trump received his intelligence briefing and met with ICE Director Matt Albence.
* On Friday, Trump met with the Vice Premier of the People’s Republic of China.

 
** FEDERAL JUDICIARY UPDATE
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* 107 federal judicial vacancies
* 40 pending nominations
* 16 future federal judicial vacancies

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The Lucy Burns Institute, publisher of Ballotpedia, is a 501(c)(3) nonprofit organization. All donations are tax deductible to the extent of the law. Donations to the Lucy Burns Institute or Ballotpedia do not support any candidates or campaigns.
 

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