courthousenews--2020-12-08--Fight to Block Gay Marriage Trial Video Hits Ninth Circuit

SAN FRANCISCO ( CN ) — Fighting to block the release of video of a landmark trial that overturned California ’ s ban on same-sex marriage , a lawyer told the Ninth Circuit on Monday that a judge ’ s promise trumps the public ’ s interest in accessing court records .
An attorney for supporters of Proposition 8 , a 2008 voter-backed ballot measure that banned gay marriage in California , urged a three-judge panel of the federal appeals court to uphold a judge ’ s decade-old promise not to air the video , even after the passing of @ @ @ @ @ @ @ .
“ The judicial integrity interest and keeping faith with the solemn promises in open court is a compelling one that overrides any First Amendment right of access , ” said attorney John Ohlendorf of Cooper & Kirk in Washington .
U.S. District Judge William Orrick III denied Proposition 8 supporters ’ motion to maintain the seal in July , finding a judge ’ s promise does not supersede a 10-year expiration date for sealed court records .
He also concluded Proposition 8 proponents offered no other valid reason for withholding the videos @ @ @ @ @ @ @ or harassment that might result from the release .
Now-retired U.S. District Judge Vaughn Walker overturned California ’ s ban on same-sex marriage in August 2010 following a two-week bench trial in January that year .
His ruling in Perry v. Schwarzenegger did not take effect until June 2013 when appeals in the case were resolved .
Walker ’ s decision preceded the U.S. Supreme Court ’ s June 2015 ruling expanding the right to marry to same-sex couples across the nation .
Walker initially planned to broadcast videos of the 2010 bench @ @ @ @ @ @ @ barred the broadcast at the request of Proposition 8 supporters involved in the case .
After Walker promised the videos would only be used for him to review testimony behind closed doors , Proposition 8 proponents dropped their objections against video recording .
On Monday , a lawyer representing the two couples who challenged California ’ s same-sex marriage ban noted that these are records of an open court proceeding .
After broadcasting of the trial was banned , reenactments were made based on trial transcripts with actors playing the judge , lawyers @ @ @ @ @ @ @ basis of a Broadway play in 2011 , later aired on television and adapted for a radio play in Australia .
“ This may be the least confidential sealed document you will ever encounter in your career , ” plaintiffs ’ attorney Christopher Dusseault of Gibson Dunn & Crutcher argued .
Representing a media coalition led by KQED , attorney Thomas Burke of Davis Wright Tremaine insisted the concerns that existed in 2012 when the Ninth Circuit blocked an earlier attempt to release the videos are no longer relevant .
One of those @ @ @ @ @ @ @ retried , he said .
“ Are you saying a judicial promise or commitment can get stale as times change and so it ’ s no longer binding ?
” U.S .
Circuit Judge Sandra Ikuta , a George W. Bush appointee , asked .
Burke said that the context in which the promise was made must be analyzed closely .
“ It ’ s sort of like a marriage where you go , ‘ til death do us part , ’ but you ’ ve actually got your fingers crossed so it @ @ @ @ @ @ @ , ” Ikuta replied .
“ Is that it ?
” Burke answered that judicial integrity is important , but he believes releasing the videos will enhance , rather than hurt , the concept .
“ This is in our view a shining moment for the federal judiciary , ” Burke said .
“ It ’ s nothing to be hidden away.
” U.S .
Circuit Judge William Fletcher , a Bill Clinton appointee , questioned whether Proposition 8 supporters actually want the recordings to remain under seal , given the fact that @ @ @ @ @ @ @ involved in the case testified that the videos should stay sealed .
“ I ’ m trying to figure out if they care , ” Fletcher said .
“ Is there anybody you ’ re representing that cares , and where do I look in the record to find out that somebody you ’ re representing cares ?
” Ohlendorf acknowledged that none of his clients testified in support of keeping the records sealed , but he cited an email from one of his colleagues stating that the clients were polled and a @ @ @ @ @ @ @ the trial video under wraps .
Fletcher also pressed Ohlendorf about the position taken by his colleague during oral arguments before the Ninth Circuit in 2011 regarding the same sealed recordings .
In that hearing , the lawyer said Proposition 8 supporters understood the seal would expire after 10 years and that they would need to “ make a good cause showing ” to obtain an extension .
Ohlendorf said that position is completely in step with the stance they are taking now .
“ We have consistently maintained in 2010 , 2012 @ @ @ @ @ @ @ is a compelling reason , ” he said .
“ So your argument is you need to show good cause and you have done so ?
” Fletcher asked .
U.S .
Circuit Judge Carlos Lucero , a Clinton appointee sitting by designation from the Tenth Circuit , joined Ikuta and Fletcher on the panel .

Fighting to block the release of video of a landmark trial that overturned California’s ban on same-sex marriage, a lawyer told the Ninth Circuit on Monday that a judge’s promise trumps the public’s interest in accessing court records.
SAN FRANCISCO (CN) — Fighting to block the release of video of a landmark trial that overturned California’s ban on same-sex marriage, a lawyer told the Ninth Circuit on Monday that a judge’s promise trumps the public’s interest in accessing court records.
An attorney for supporters of Proposition 8, a 2008 voter-backed ballot measure that banned gay marriage in California, urged a three-judge panel of the federal appeals court to uphold a judge’s decade-old promise not to air the video, even after the passing of a 10-year expiration date for sealed records.
“The judicial integrity interest and keeping faith with the solemn promises in open court is a compelling one that overrides any First Amendment right of access,” said attorney John Ohlendorf of Cooper & Kirk in Washington.
U.S. District Judge William Orrick III denied Proposition 8 supporters’ motion to maintain the seal in July, finding a judge’s promise does not supersede a 10-year expiration date for sealed court records. He also concluded Proposition 8 proponents offered no other valid reason for withholding the videos, such as a fear of retaliation or harassment that might result from the release.
In August, the Ninth Circuit stayed Orrick’s decision pending appeal.
Now-retired U.S. District Judge Vaughn Walker overturned California’s ban on same-sex marriage in August 2010 following a two-week bench trial in January that year. His ruling in Perry v. Schwarzenegger did not take effect until June 2013 when appeals in the case were resolved.
Walker’s decision preceded the U.S. Supreme Court’s June 2015 ruling expanding the right to marry to same-sex couples across the nation.
Walker initially planned to broadcast videos of the 2010 bench trial, but the U.S. Supreme Court barred the broadcast at the request of Proposition 8 supporters involved in the case. After Walker promised the videos would only be used for him to review testimony behind closed doors, Proposition 8 proponents dropped their objections against video recording.
On Monday, a lawyer representing the two couples who challenged California’s same-sex marriage ban noted that these are records of an open court proceeding. After broadcasting of the trial was banned, reenactments were made based on trial transcripts with actors playing the judge, lawyers and witnesses. The transcripts became the basis of a Broadway play in 2011, later aired on television and adapted for a radio play in Australia.
“This may be the least confidential sealed document you will ever encounter in your career,” plaintiffs’ attorney Christopher Dusseault of Gibson Dunn & Crutcher argued.
Representing a media coalition led by KQED, attorney Thomas Burke of Davis Wright Tremaine insisted the concerns that existed in 2012 when the Ninth Circuit blocked an earlier attempt to release the videos are no longer relevant. One of those concerns was that the case might be retried, he said.
“Are you saying a judicial promise or commitment can get stale as times change and so it’s no longer binding?” U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, asked.
Burke said that the context in which the promise was made must be analyzed closely.
“It’s sort of like a marriage where you go, ‘til death do us part,’ but you’ve actually got your fingers crossed so it really means until we change our mind,” Ikuta replied. “Is that it?”
Burke answered that judicial integrity is important, but he believes releasing the videos will enhance, rather than hurt, the concept.
“This is in our view a shining moment for the federal judiciary,” Burke said. “It’s nothing to be hidden away.”
U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, questioned whether Proposition 8 supporters actually want the recordings to remain under seal, given the fact that not one witness or Proposition 8 proponent involved in the case testified that the videos should stay sealed.
“I’m trying to figure out if they care,” Fletcher said. “Is there anybody you’re representing that cares, and where do I look in the record to find out that somebody you’re representing cares?”
Ohlendorf acknowledged that none of his clients testified in support of keeping the records sealed, but he cited an email from one of his colleagues stating that the clients were polled and a “critical mass” wanted to keep the trial video under wraps.
Fletcher also pressed Ohlendorf about the position taken by his colleague during oral arguments before the Ninth Circuit in 2011 regarding the same sealed recordings. In that hearing, the lawyer said Proposition 8 supporters understood the seal would expire after 10 years and that they would need to “make a good cause showing” to obtain an extension.
Ohlendorf said that position is completely in step with the stance they are taking now.
“We have consistently maintained in 2010, 2012 and today that the judicial integrity interest is a compelling reason,” he said.
“So your argument is you need to show good cause and you have done so?” Fletcher asked.
“That’s right, your honor,” Ohlendorf replied.
U.S. Circuit Judge Carlos Lucero, a Clinton appointee sitting by designation from the Tenth Circuit, joined Ikuta and Fletcher on the panel.


courthousenews--2020-12-08--Ninth Circuit Stalls Alaska Offshore Drilling Project

( CN ) — A Ninth Circuit panel on Monday halted a project to build a nine-acre gravel island in the Alaskan Arctic ’ s only kelp forest , finding that multiple government agencies greenlighted the proposal without properly considering the consequences .
The federal appeals court panel rejected an argument often relied on by proponents of oil and gas pipelines : that fossil fuel extraction in the United States is good for the environment , because it replaces oil and gas projects in countries with weaker environmental laws .
The government should have calculated emissions from overseas use of @ @ @ @ @ @ @ and didn ’ t bother to estimate the number of polar bears expected to be harmed by the project before granting permits , according to the ruling from U.S .
Circuit Judges Richard Paez and Johnnie Rawlinson , both Clinton appointees , and U.S. District Judge Leslie Kobayashi , an Obama appointee sitting by designation from the District of Hawaii .
Hilcorp Alaska wants to build its oil extraction island in an area of Foggy Island Bay called “ the boulder patch , ” which has shallow , cobble-strewn waters home to a @ @ @ @ @ @ @ and endangered polar bears , whales , seals , walruses and sea otters , as well as numerous species of fish and seabirds .
In October 2018 , the Bureau of Ocean Management used Fish & Wildlife ’ s findings to approve the project .
But the U.S .
Fish & Wildlife Service signed off on the project without considering its effects on polar bears and used mitigation measures that weren ’ t guaranteed to happen to determine that the project would have “ no adverse effect ” on marine mammals , the @ @ @ @ @ @ @ have to reconsider the project in light of the ruling .
As the Bureau of Ocean Energy Management explained in court documents and at hearings , it analyzed the pollution that would issue from the construction and operation of the Liberty drilling project .
But it didn ’ t estimate the greenhouse gas emissions that would result from the burning of that oil to heat homes and fuel cars — most of which would happen in other countries .
Not only did the agency decline to calculate such emissions , it didn ’ @ @ @ @ @ @ @ , beyond a reference in an appendix to its 600-page environmental impact statement where it said the project would have “ only a negligible impact on foreign consumption and emissions levels.
” Environmental groups led by the Center for Biological Diversity sued in December 2018 , claiming the approval was misleading without those numbers .
The judges agreed , noting in a ruling written by Judge Paez that emissions from foreign oil consumption are “ reasonably foreseeable.
” Although such estimates are readily available , Paez wrote , the agency has repeatedly declined @ @ @ @ @ @ @ one study , the Stockholm Environment Institute used numbers from the agency ’ s own reports to show that the Keystone XL Pipeline would increase foreign oil consumption 10 times as much as the agency had estimated the project would increase oil consumption within theU.S .
Another study published in the journal Nature showed that taking foreign oil consumption into account meant that the Keystone Pipeline would increase greenhouse gas emissions by four times the amount government agencies were estimating using domestic emissions alone .
“ BOEM did not summarize existing research addressing @ @ @ @ @ @ @ the magnitude of such emissions , ” Paez wrote .
“ It can not ignore basic economics principles and state — without citations or discussion — that the impact of the Liberty project on foreign oil consumption will be negligible.
” After all that , Paez said it was “ somewhat perplexing ” for the government to claim that drilling in the Arctic would result in less greenhouse gas emissions than foregoing the project altogether .
The argument was based on a claim common to proponents of petroleum projects : that oil and @ @ @ @ @ @ @ reduce emissions by replacing oil and gas projects in countries with weaker environmental protections .
It was an argument advanced by Justice Department attorney James Maysonett at a November 2019 hearing at the Pioneer Courthouse in Portland , Oregon .
“ It may be counterintuitive , but that doesn ’ t mean it ’ s irrational to say that if we don ’ t develop oil and gas resources in this country and we choose instead to rely on foreign and imported oil , we can stick our head in the sand and @ @ @ @ @ @ @ ” Maysonett told the judges .
“ It is unclear from the administrative record what justifies these assumptions and not those needed to estimate foreign oil consumption , ” Paez wrote .
The environmental groups behind the lawsuit celebrated their win on Monday .
“ This is a huge victory for polar bears and our climate , ” said Kristen Monsell , oceans legal director at the Center for Biological Diversity .
“ This project was a disaster waiting to happen that should never have been approved .
I ’ m thrilled the @ @ @ @ @ @ @ s attempt to push this project through without carefully studying its risks .
”

A Ninth Circuit panel on Monday halted a project to build a nine-acre gravel island in the Alaskan Arctic’s only kelp forest, finding that multiple government agencies greenlighted the proposal without properly considering the consequences.
(CN) — A Ninth Circuit panel on Monday halted a project to build a nine-acre gravel island in the Alaskan Arctic’s only kelp forest, finding that multiple government agencies greenlighted the proposal without properly considering the consequences.
The federal appeals court panel rejected an argument often relied on by proponents of oil and gas pipelines: that fossil fuel extraction in the United States is good for the environment, because it replaces oil and gas projects in countries with weaker environmental laws.
The government should have calculated emissions from overseas use of oil drilled off the coast of Alaska and didn’t bother to estimate the number of polar bears expected to be harmed by the project before granting permits, according to the ruling from U.S. Circuit Judges Richard Paez and Johnnie Rawlinson, both Clinton appointees, and U.S. District Judge Leslie Kobayashi, an Obama appointee sitting by designation from the District of Hawaii.
Hilcorp Alaska wants to build its oil extraction island in an area of Foggy Island Bay called “the boulder patch,” which has shallow, cobble-strewn waters home to a diverse wealth of creatures, including threatened and endangered polar bears, whales, seals, walruses and sea otters, as well as numerous species of fish and seabirds.
In October 2018, the Bureau of Ocean Management used Fish & Wildlife’s findings to approve the project.
But the U.S. Fish & Wildlife Service signed off on the project without considering its effects on polar bears and used mitigation measures that weren’t guaranteed to happen to determine that the project would have “no adverse effect” on marine mammals, the judges found.
The agency will now have to reconsider the project in light of the ruling.
As the Bureau of Ocean Energy Management explained in court documents and at hearings, it analyzed the pollution that would issue from the construction and operation of the Liberty drilling project. But it didn’t estimate the greenhouse gas emissions that would result from the burning of that oil to heat homes and fuel cars — most of which would happen in other countries.
Not only did the agency decline to calculate such emissions, it didn’t explain why it skipped that step, beyond a reference in an appendix to its 600-page environmental impact statement where it said the project would have “only a negligible impact on foreign consumption and emissions levels.”
Environmental groups led by the Center for Biological Diversity sued in December 2018, claiming the approval was misleading without those numbers.
The judges agreed, noting in a ruling written by Judge Paez that emissions from foreign oil consumption are “reasonably foreseeable.” Although such estimates are readily available, Paez wrote, the agency has repeatedly declined to take them into account.
In one study, the Stockholm Environment Institute used numbers from the agency’s own reports to show that the Keystone XL Pipeline would increase foreign oil consumption 10 times as much as the agency had estimated the project would increase oil consumption within theU.S. Another study published in the journal Nature showed that taking foreign oil consumption into account meant that the Keystone Pipeline would increase greenhouse gas emissions by four times the amount government agencies were estimating using domestic emissions alone.
“BOEM did not summarize existing research addressing foreign oil emissions nor attempt to estimate the magnitude of such emissions,” Paez wrote. “It cannot ignore basic economics principles and state — without citations or discussion — that the impact of the Liberty project on foreign oil consumption will be negligible.”
After all that, Paez said it was “somewhat perplexing” for the government to claim that drilling in the Arctic would result in less greenhouse gas emissions than foregoing the project altogether. The argument was based on a claim common to proponents of petroleum projects: that oil and gas projects conducted in the U.S. actually reduce emissions by replacing oil and gas projects in countries with weaker environmental protections.
It was an argument advanced by Justice Department attorney James Maysonett at a November 2019 hearing at the Pioneer Courthouse in Portland, Oregon.
“It may be counterintuitive, but that doesn’t mean it’s irrational to say that if we don’t develop oil and gas resources in this country and we choose instead to rely on foreign and imported oil, we can stick our head in the sand and say that has no environmental effects,” Maysonett told the judges.
Paez rejected that reasoning.
“It is unclear from the administrative record what justifies these assumptions and not those needed to estimate foreign oil consumption,” Paez wrote.
The environmental groups behind the lawsuit celebrated their win on Monday.
“This is a huge victory for polar bears and our climate,” said Kristen Monsell, oceans legal director at the Center for Biological Diversity. “This project was a disaster waiting to happen that should never have been approved. I’m thrilled the court saw through the Trump administration’s attempt to push this project through without carefully studying its risks.”


courthousenews--2020-12-08--Feds Face Fresh Lawsuit to Protect Endangered Sage Grouse

( CN ) — Environmental groups sued the Trump administration in federal court Monday for failing to protect the endangered Gunnison sage grouse from cattle grazing across its southwestern Colorado habitat .
The peacock of the prairie , the male Gunnison sage grouse has spiky barred tailfeathers and striking snowy plumage around its throat .
During mating season , males woo females by inflating yellow air sacs on their chest .
Despite its uniqueness , the sage grouse is one of the most endangered animals in the world .
Since 2013 , the Gunnison sage grouse population in Utah and @ @ @ @ @ @ @ 2013 , an estimated 3,149 birds inhabited the Gunnison Basin , compared to 1,667 today .
To be considered viable , the birds must maintain a population above 5,000 .
Many environmental groups say the birds are particularly vulnerable amid Trump-era protection rollbacks .
“ The Gunnison sage grouse is in sharp decline and will certainly go extinct if immediate action isn ’ t taken to save it , ” said Ryan Shannon , a staff attorney at the Center for Biological Diversity in a statement .
“ The Bureau of Land Management @ @ @ @ @ @ @ before it ’ s too late and protect these beautiful grouse from livestock grazing.
” When the U.S. Environmental Protection Agency added the bird to the endangered species list in 2013 , it designated 1.7 million acres as critical habitat and created the Gunnison Basin Candidate Conservation Agreement to manage the bird ’ s survival .
The agreement is expected to hold for two decades , unless new information — like the steep population decline — supports the need for revisions .
In its 30-page lawsuit filed against the Department of Interior and @ @ @ @ @ @ @ Diversity and the Western Watershed contend the agreement is not only inadequate but that key parts remain unenforced .
One arbitrary provision is grass height .
Even though sage grouse need grass at least 7 inches tall , the government set guidelines to maintain grass heights from 3.9 to 5.9 inches .
“ Many of the federal lands leased for livestock grazing in Gunnison sage grouse habitat have been failing basic land-health standards as a direct result of heavy livestock grazing , ” said Talasi Brooks , staff attorney with Western Watersheds Project @ @ @ @ @ @ @ ’ re serious about recovering this spectacular and embattled bird , we ’ re going to need to address the damage being done by private cows on these public lands.
” According to the lawsuit , the Fish and Wildlife Service has long acknowledged the risks posed by grazing cattle .
According to the lawsuit , the federal agency concluded “ certain authorized activities such as livestock grazing were likely to adversely affect the Gunnison sage grouse , [ but ] the Gunnison Basin Candidate Conservation Agreement would not jeopardize the continued existence @ @ @ @ @ @ @ or adversely modify its critical habitat if Bureau of Land Management , the Forest Service , and National Park Service implemented specific conservation measures and adhered to annual reporting requirement.
” Documents provided to the Center for Biological Diversity through Freedom of Information Act requests show mandatory reporting on annual takings and population growth are not occurring .
The groups want a federal judge to prevent the federal agencies from allowing livestock grazing on sage grouse habitat and to award attorneys ’ fees .
The Department of Interior did not immediately respond to @ @ @ @ @

Environmental groups sued the Trump administration in federal court Monday for failing to protect the endangered Gunnison sage grouse from cattle grazing across its southwestern Colorado habitat.
(CN) — Environmental groups sued the Trump administration in federal court Monday for failing to protect the threatened Gunnison sage grouse from cattle grazing across its southwestern Colorado habitat.
The peacock of the prairie, the male Gunnison sage grouse has spiky barred tailfeathers and striking snowy plumage around its throat. During mating season, males woo females by inflating yellow air sacs on their chest. Despite its uniqueness, the sage grouse is one of the most endangered animals in the world.
Since 2013, the Gunnison sage grouse population in Utah and Colorado has declined by half. In 2013, an estimated 3,149 birds inhabited the Gunnison Basin, compared to 1,667 today. To be considered viable, the birds must maintain a population above 5,000.
Many environmental groups say the birds are particularly vulnerable amid Trump-era protection rollbacks.
“The Gunnison sage grouse is in sharp decline and will certainly go extinct if immediate action isn’t taken to save it,” said Ryan Shannon, a staff attorney at the Center for Biological Diversity in a statement. “The Bureau of Land Management and Forest Service need to step up before it’s too late and protect these beautiful grouse from livestock grazing."
When the U.S. Fish and Wildlife Service added the bird to the threatened species list in 2013, it designated 1.7 million acres as critical habitat and created the Gunnison Basin Candidate Conservation Agreement to manage the bird’s survival. The agreement is expected to hold for two decades, unless new information — like the steep population decline — supports the need for revisions.
In its 30-page lawsuit filed against the Department of Interior and underlying agencies, the Center for Biological Diversity and the Western Watershed contend the agreement is not only inadequate but that key parts remain unenforced.
One arbitrary provision is grass height. Even though sage grouse need grass at least 7 inches tall, the government set guidelines to maintain grass heights from 3.9 to 5.9 inches.
“Many of the federal lands leased for livestock grazing in Gunnison sage grouse habitat have been failing basic land-health standards as a direct result of heavy livestock grazing,” said Talasi Brooks, staff attorney with Western Watersheds Project in a statement. “If we’re serious about recovering this spectacular and embattled bird, we’re going to need to address the damage being done by private cows on these public lands."
According to the lawsuit, the Fish and Wildlife Service has long acknowledged the risks posed by grazing cattle.
According to the lawsuit, the federal agency concluded "certain authorized activities such as livestock grazing were likely to adversely affect the Gunnison sage grouse, [but] the Gunnison Basin Candidate Conservation Agreement would not jeopardize the continued existence of the Gunnison sage grouse or destroy or adversely modify its critical habitat if Bureau of Land Management, the Forest Service, and National Park Service implemented specific conservation measures and adhered to annual reporting requirement.”
Documents provided to the Center for Biological Diversity through Freedom of Information Act requests show mandatory reporting on annual takings and population growth are not occurring.
The groups want a federal judge to prevent the federal agencies from allowing livestock grazing on sage grouse habitat and to award attorneys’ fees.
The Department of Interior did not immediately respond to a request for comment.


courthousenews--2020-12-09--Antitrust Case Against Kaiser Revived by Ninth Circuit

( CN ) — A Ninth Circuit panel revived an antitrust lawsuit accusing health care giant Kaiser Permanente of trying to monopolize the health insurance market in California ’ s Solano County .
The hospital group , NorthBay Healthcare , accuses Kaiser Permanente of steering insured trauma patients away from its hospitals and instead only sending uninsured patients .
Northbay also accuses Kaiser of breaking a reimbursement agreement with NorthBay and cutting the amount the hospital could recoup for its medical services , according to a complaint filed in the Northern District of California in 2017 .
Kaiser did these @ @ @ @ @ @ @ competitor insurance provider , Western Health Advantage , according to their complaint .
U.S. Magistrate Judge Laura Beeler dismissed the lawsuit finding NorthBay failed to show the four essential elements of “ causal antitrust injury ” and therefore could not support its monopolization and conspiracy to monopolize claims .
But on Tuesday , a divided Ninth Circuit panel reversed Beeler and resuscitated the case .
The majority found NorthBay had made a sufficient showing that Kaiser was involved in unlawful conduct , despite Beeler finding the scenario where “ lucrative patients ” were @ @ @ @ @ @ @ resources was lacking .
“ However ‘ fanciful ’ these facts may seem is irrelevant , ” the majority wrote in its unpublished memorandum opinion .
“ Given that only the claim needs to be plausible , and not the facts themselves , we disagree with the district court ’ s conclusion that any further factual enhancement was necessary.
” The termination of a 2010 reimbursement agreement that cut profits to NorthBay supports the unlawful conduct claim as Kaiser Permanente “ exposed themselves to potential liability under California law , ” went against @ @ @ @ @ @ @ injure NorthBay , the majority found .
The financial hit NorthBay took also leans into the next elements of causal antitrust injury and injury flowing from anticompetitive conduct that hurt its efforts to invest in its hospital facilities and services writes the majority .
“ NorthBay ’ s steering and reimbursement allegations caused financial injuries that go to the heart of anticompetitive conduct , ” the majority wrote .
“ And NorthBay alleges that defendants ’ unlawful conduct has worked because , to date , it has had to curb future investment plans @ @ @ @ @ @ @ , and reduce services available to the public .
These alleged injuries to NorthBay undoubtedly ‘ hurt competition.
’ ” Because NorthBay could not complete the major investment projects at its facilities , its quality of services suffered .
“ Such disruption could , as alleged , diminish the quality of services for the public and thus fall under the type of protection the antitrust laws were intended to afford , ” the majority found .
Regarding the last antitrust injury element , the panel found NorthBay and Kaiser were competitors in the @ @ @ @ @ @ @ in the insurance market .
Western Health Advantage — part of NorthBay ’ s hospital system — is Kaiser ’ s only competitor in the Solano County market so any injury suffered by NorthBay would hurt Western under U.S. Supreme Court precedent in Blue Shield of Virginia v McCready .
“ Thus , defendants sought to injure NorthBay ’ s investment projects by steering patients and cutting reimbursement rates , which , in effect , aided its efforts to squeeze Western out of that market and maintain a monopoly , ” the majority @ @ @ @ @ @ @ Circuit Judge Richard Paez and Senior U.S. District Judge Janis Jack , sitting by designation from the Southern District of Texas , made up the majority .
In a 14-page dissent , U.S .
Circuit Judge Carlos Bea wrote “ NorthBay set for itself an uphill climb ” to try and prove that Kaiser was building a monopoly against two parties that were not its direct competitors .
“ The majority is wrong to push NorthBay over the top by unmooring McCready entirely from the market participant rule , ” the George W. @ @ @ @ @ @ @ ’ s own “ complex financial decision-making processes ” were based on “ assumptions and predictions made apart from any intervention by Kaiser ” and defeat any alleged unlawful conduct claims .
The judge compared NorthBay ’ s claims to sinking the eight-ball on a straight shot on a pool table as “ opposed to sending the cue ball careening into the racked billiard balls at the beginning of the game , when the eight-ball is nestled in the middle of the racked balls , and hoping for the best.
” He added @ @ @ @ @ @ @ causation ; the outcome of the latter is famously beyond ordinary human ability accurately to predict .
Like the multiple assumptions and predictions of NorthBay , the balls racked around the eight-ball sever the proximate causal relationship between the cue ball and the eight-ball , which may , or may not , end up in the side pocket by the effort of the player.
” NorthBay declined to comment on the court ’ s ruling .
Kaiser Permanente did not immediately respond to requests for comment .

A Ninth Circuit panel revived an antitrust lawsuit accusing health care giant Kaiser Permanente of trying to monopolize the health insurance market in California’s Solano County.
(CN) — A Ninth Circuit panel revived an antitrust lawsuit accusing health care giant Kaiser Permanente of trying to monopolize the health insurance market in California’s Solano County.
The hospital group, NorthBay Healthcare, accuses Kaiser Permanente of steering insured trauma patients away from its hospitals and instead only sending uninsured patients.
Northbay also accuses Kaiser of breaking a reimbursement agreement with NorthBay and cutting the amount the hospital could recoup for its medical services, according to a complaint filed in the Northern District of California in 2017.
Kaiser did these things to financially harm NorthBay and a competitor insurance provider, Western Health Advantage, according to their complaint.
U.S. Magistrate Judge Laura Beeler dismissed the lawsuit finding NorthBay failed to show the four essential elements of “causal antitrust injury” and therefore could not support its monopolization and conspiracy to monopolize claims.
But on Tuesday, a divided Ninth Circuit panel reversed Beeler and resuscitated the case.
The majority found NorthBay had made a sufficient showing that Kaiser was involved in unlawful conduct, despite Beeler finding the scenario where “lucrative patients” were steered away to drain NorthBay of its resources was lacking.
“However ‘fanciful’ these facts may seem is irrelevant,” the majority wrote in its unpublished memorandum opinion. “Given that only the claim needs to be plausible, and not the facts themselves, we disagree with the district court’s conclusion that any further factual enhancement was necessary.”
The termination of a 2010 reimbursement agreement that cut profits to NorthBay supports the unlawful conduct claim as Kaiser Permanente “exposed themselves to potential liability under California law,” went against its own interests and was meant to injure NorthBay, the majority found.
The financial hit NorthBay took also leans into the next elements of causal antitrust injury and injury flowing from anticompetitive conduct that hurt its efforts to invest in its hospital facilities and services writes the majority.
“NorthBay’s steering and reimbursement allegations caused financial injuries that go to the heart of anticompetitive conduct,” the majority wrote. “And NorthBay alleges that defendants’ unlawful conduct has worked because, to date, it has had to curb future investment plans, close departments, lay off employees, and reduce services available to the public. These alleged injuries to NorthBay undoubtedly ‘hurt competition.’”
Because NorthBay could not complete the major investment projects at its facilities, its quality of services suffered.
“Such disruption could, as alleged, diminish the quality of services for the public and thus fall under the type of protection the antitrust laws were intended to afford,” the majority found.
Regarding the last antitrust injury element, the panel found NorthBay and Kaiser were competitors in the same market even though NorthBay was not in the insurance market. Western Health Advantage — part of NorthBay’s hospital system — is Kaiser’s only competitor in the Solano County market so any injury suffered by NorthBay would hurt Western under U.S. Supreme Court precedent in Blue Shield of Virginia v McCready.
“Thus, defendants sought to injure NorthBay’s investment projects by steering patients and cutting reimbursement rates, which, in effect, aided its efforts to squeeze Western out of that market and maintain a monopoly,” the majority wrote.
Bill Clinton appointees U.S. Circuit Judge Richard Paez and Senior U.S. District Judge Janis Jack, sitting by designation from the Southern District of Texas, made up the majority.
In a 14-page dissent, U.S. Circuit Judge Carlos Bea wrote “NorthBay set for itself an uphill climb” to try and prove that Kaiser was building a monopoly against two parties that were not its direct competitors.
“The majority is wrong to push NorthBay over the top by unmooring McCready entirely from the market participant rule,” the George W. Bush appointee wrote.
Bea said NorthBay’s own “complex financial decision-making processes” were based on “assumptions and predictions made apart from any intervention by Kaiser” and defeat any alleged unlawful conduct claims.
The judge compared NorthBay’s claims to sinking the eight-ball on a straight shot on a pool table as “opposed to sending the cue ball careening into the racked billiard balls at the beginning of the game, when the eight-ball is nestled in the middle of the racked balls, and hoping for the best.”
He added: “The former outcome is direct causation; the outcome of the latter is famously beyond ordinary human ability accurately to predict. Like the multiple assumptions and predictions of NorthBay, the balls racked around the eight-ball sever the proximate causal relationship between the cue ball and the eight-ball, which may, or may not, end up in the side pocket by the effort of the player.”
NorthBay declined to comment on the court’s ruling. Kaiser Permanente
Kaiser Permanente said it is surprised and disappointed in the court's decision.
"We are evaluating our options regarding this split decision, which is a “memorandum disposition” and therefore is not precedent, particularly in light of what Judge Bea called the 'thin gruel' of NorthBay’s allegations and his description of the clear ways the Dec. 8 decision conflicts with precedent," Kaiser Permanente said in a statement.
The health care giant said it is "committed to affordable health care and that includes paying a fair and reasonable rate for emergency services provided to our members by other hospitals, consistent with California law."


courthousenews--2020-12-09--Federal Courts in California Reduce Operations During Second Shutdown

( CN ) — California ’ s federal courts have been forced to reduce in-person operations this week amid a new round of stay-at-home orders due to an explosion of Covid-19 cases which has strained hospital ICU capacity nearly statewide .
All courthouses in the Central District of California in Los Angeles and surrounding counties will be closed to the public for the next month , with in-person court hearings suspended through Jan. 8 in favor of telephonic and video conference hearings .
Chief U.S. District Judge Philip S. Gutierrez announced the Central District activated its “ Continuity of Operations @ @ @ @ @ @ @ — due to “ the recent unprecedented surge of Covid-19 cases , hospitalizations , and test positivity rates in the Central District.
” Courts across the state reversed course — after largely resuming operations this summer following pandemic-related closures this past spring — this past week when Governor Gavin Newsom announced stay-at-home orders last week any time a region has fewer than 15 % of its ICU beds available .
The orders include travel restrictions , business closures and “ 100 % masking and physical distancing.
” The San Francisco Bay Area , @ @ @ @ @ @ @ to voluntarily comply with new restrictions , rather than waiting for their ICU capacity to drop below 15 % .
Southern California , home to both the Central and Southern districts , saw its ICU bed availability drop below 15 % this past weekend , triggering the new restrictions .
Even though the Southern District of California is within a region now subjected to the stay-at-home order , its courthouses are the only federal courthouses in the state which remain open without restrictions to the public .
But in an order made available @ @ @ @ @ @ @ Alan Burns said the latest stay-at-home orders generally restricting indoor operations to 20 % of the usual capacity “ has caused me to reevaluate whether to continue to conduct in-person court proceedings without seriously jeopardizing public health and safety.
” The Southern District of California joined all federal courts across the state in suspending in-person hearings and jury trials , but judges in the district maintain discretion whether to hold in-person criminal and civil hearings “ as may be lawful and appropriate to ensure the fairness of the proceedings and preserve the rights @ @ @ @ @ @ @ Union of San Diego & Imperial Counties Legal Director David Loy told Courthouse News while getting his office ’ s cases resolved has not been affected by pandemic-related court restrictions , “ the real cost ” of closing courthouses is delay of jury trials , particularly for incarcerated criminal defendants .
“ It is a challenging position because there are significant public health risks to bringing people into the courthouse for trial .
What little I know says the highest public health risk is lots of people congregating in a closed room for @ @ @ @ @ @ @ by definition , is what a trial is , ” Loy said .
Loy said pandemic-related court restrictions , particularly trial delays , raise larger questions about mass incarceration and detention .
“ What is on the docket in the Southern District ?
Do they need to be charging this many cases ?
If people who were detained received credit for time served , should they have been detained in the first place ?
” Loy asked .
He pointed out his office filed class actions in the Southern District challenging the continued @ @ @ @ @ @ @ the pandemic .
While the ACLU was able to successfully advocate for the release of about 100 medically vulnerable immigrant detainees , Loy said his office was not successful challenging the detention of criminal defendants .
Civil rights and environmental attorney Bryan Pease told Courthouse News the various iterations of pandemic-related closures and restrictions have not affected his pending cases .
“ It hasn ’ t affected me because everything has been over the phone , ” Pease said .
“ I ’ ve had motions pending for a long time in federal @ @ @ @ @ @ @ have been some delays , but I ’ m not sure how much is pandemic-related .
The real major impact of closures is people not being able to have trials , which is what they need to resolve their case and be made whole , ” Pease added .
He said federal court “ has been taking care of business , ” noting even when San Diego County Superior Court closed for a couple months this past spring , the Southern District of California remained open .
“ The federal system is much @ @ @ @ @ @ @ led to it being able to handle the pandemic issues better than the state system , ” Pease said .
Federal courts throughout the state have pivoted to virtual court hearings by allowing the public and members of the press to call into teleconference and videoconference hearings .
The policies remain in place during the latest restrictions .
While nearly all in-person federal hearings are temporarily suspended throughout the state , the Eastern District of California in the Greater Sacramento and San Joaquin Valley regions is the only federal court that will continue @ @ @ @ @ @ @ of the courts address by Judge Burns in the Southern District and San Diego Superior Court Presiding Judge Lorna Alksne , hosted by the San Diego County Bar Association , is scheduled for this Thursday .

California’s federal courts have been forced to reduce in-person operations this week amid a new round of stay-at-home orders due to an explosion of Covid-19 cases which has strained hospital ICU capacity nearly statewide.
(CN) — California’s federal courts have been forced to reduce in-person operations this week amid a new round of stay-at-home orders due to an explosion of Covid-19 cases which has strained hospital ICU capacity nearly statewide.
All courthouses in the Central District of California in Los Angeles and surrounding counties will be closed to the public for the next month, with in-person court hearings suspended through Jan. 8 in favor of telephonic and video conference hearings.
Chief U.S. District Judge Philip S. Gutierrez announced the Central District activated its “Continuity of Operations Plan” — effective beginning Dec. 10 — due to “the recent unprecedented surge of Covid-19 cases, hospitalizations, and test positivity rates in the Central District.”
Courts across the state reversed course — after largely resuming operations this summer following pandemic-related closures this past spring — this past week when Governor Gavin Newsom announced stay-at-home orders last week any time a region has fewer than 15% of its ICU beds available. The orders include travel restrictions, business closures and “100% masking and physical distancing.”
The San Francisco Bay Area, home to the Northern District, decided to voluntarily comply with new restrictions, rather than waiting for their ICU capacity to drop below 15%. Southern California, home to both the Central and Southern districts, saw its ICU bed availability drop below 15% this past weekend, triggering the new restrictions.
Even though the Southern District of California is within a region now subjected to the stay-at-home order, its courthouses are the only federal courthouses in the state which remain open without restrictions to the public.
But in an order made available Tuesday, Chief U.S. District Judge Larry Alan Burns said the latest stay-at-home orders generally restricting indoor operations to 20% of the usual capacity “has caused me to reevaluate whether to continue to conduct in-person court proceedings without seriously jeopardizing public health and safety.”
The Southern District of California joined all federal courts across the state in suspending in-person hearings and jury trials, but judges in the district maintain discretion whether to hold in-person criminal and civil hearings “as may be lawful and appropriate to ensure the fairness of the proceedings and preserve the rights of the parties.”
American Civil Liberties Union of San Diego & Imperial Counties Legal Director David Loy told Courthouse News while getting his office’s cases resolved has not been affected by pandemic-related court restrictions, “the real cost” of closing courthouses is delay of jury trials, particularly for incarcerated criminal defendants.
“It is a challenging position because there are significant public health risks to bringing people into the courthouse for trial. What little I know says the highest public health risk is lots of people congregating in a closed room for long periods of time. That, by definition, is what a trial is,” Loy said.
Loy said pandemic-related court restrictions, particularly trial delays, raise larger questions about mass incarceration and detention.
“What is on the docket in the Southern District? Do they need to be charging this many cases? If people who were detained received credit for time served, should they have been detained in the first place?” Loy asked.
He pointed out his office filed class actions in the Southern District challenging the continued detention of immigrants and criminal defendants during the pandemic. While the ACLU was able to successfully advocate for the release of about 100 medically vulnerable immigrant detainees, Loy said his office was not successful challenging the detention of criminal defendants.
Civil rights and environmental attorney Bryan Pease told Courthouse News the various iterations of pandemic-related closures and restrictions have not affected his pending cases.
“It hasn’t affected me because everything has been over the phone,” Pease said.
“I’ve had motions pending for a long time in federal court prior to pandemic, so there have been some delays, but I’m not sure how much is pandemic-related. The real major impact of closures is people not being able to have trials, which is what they need to resolve their case and be made whole,” Pease added.
He said federal court “has been taking care of business,” noting even when San Diego County Superior Court closed for a couple months this past spring, the Southern District of California remained open.
“The federal system is much better equipped in general, which has led to it being able to handle the pandemic issues better than the state system,” Pease said.
Federal courts throughout the state have pivoted to virtual court hearings by allowing the public and members of the press to call into teleconference and videoconference hearings. The policies remain in place during the latest restrictions.
While nearly all in-person federal hearings are temporarily suspended throughout the state, both the Northern District and the Eastern District of California, in the Greater Sacramento and San Joaquin Valley regions, will continue holding grand jury proceedings.
A state of the courts address by Judge Burns in the Southern District and San Diego Superior Court Presiding Judge Lorna Alksne, hosted by the San Diego County Bar Association, is scheduled for this Thursday.


courthousenews--2020-12-09--Annual Arctic Report Reveals Bleak Picture of Melting Ice

The National Oceanic and Atmospheric Administration ’ s annual report card on the Arctic made one thing clear : the Arctic of the past has melted away .
( CN ) — The National Oceanic and Atmospheric Administration ’ s annual Arctic Report Card released Tuesday painted an unequivocally grim portrait of a region and planet in peril , with permafrost shorelines crumbling , sea ice melting at increasing rates and the biology of the remote region undergoing major alterations .
In short , the old Arctic of the 1980s is gone .
“ The Arctic really has achieved a @ @ @ @ @ @ @ , a researcher with the U.S. Arctic Research Commission .
“ It means warmer temperatures , a less frozen landscape and changed biological activity in both the ocean and the land basin ecosystem.
” Richter-Menge is partially retired as an Arctic scientist but stays involved in crafting select reports such as NOAA ’ s 2020 Arctic Report Card .
She also appeared in a virtual press conference hosted by the American Geophysical Union on Tuesday morning to share her findings .
In her portion of the presentation , Richter-Menge drove home the dramatic @ @ @ @ @ @ @ of her career by sharing a simple photo of a swath of the Arctic in 1982 and the same place shown this year .
The difference is stark .
In 1982 , the area was full of ice with wind-swept snowbanks cropping up every few hundred yards .
At present , most of that sea ice is gone , replaced by open ocean dappled with a few floating pods of ice .
“ We anticipated the Arctic would warm , ” Richter-Menge said of her early research into the region .
“ But @ @ @ @ @ @ @ of warming in the Arctic which now amounts to about twice the rate of warming around the world.
” The latest report card found the warming trend persists , with surface air temperatures in all places north of 60 degrees latitude the second-highest on record and the Eurasian Arctic — the area north of Scandinavia and Russia — seeing high temperature records .
“ It is driven by extreme departures over the high Arctic , Siberia and the adjacent seas , ” said Richard Thoman of the International Arctic Research Center .
Thoman @ @ @ @ @ @ @ s report card , said the minimum sea ice extent was also the second-lowest on record .
“ While the sea ice minimum gets the press and the headlines , changes in the sea ice thickness and quality along with the timing and seasonality of the sea ice has impacts on everything from the ecosystem to shipping to national security , ” he said .
Another knock-on effect of a warming Arctic is the region ’ s new-fangled susceptibility to large wildfires .
While much of the focus has been on wildfires in @ @ @ @ @ @ @ Oregon and California , Alaska has also witnessed record-shattering wildfires in the last few years .
“ There is a higher probability for large fires around the circumpolar north since the turn of the 20th century , ” said Alison York , a scientist with the University of Alaska , Fairbanks .
“ It sure seems like it ’ s always happening somewhere.
” Part of the reason is tundra is actually highly flammable due to a high amount of carbon embedded under the frozen portions of the landscape .
As those regions @ @ @ @ @ @ @ to fire , which would release vast amounts of carbon into an atmosphere increasingly replete with it .
“ Once established , fires can smolder for a long time , ” York said .
But the report did contain some good news .
The bowhead whale , the only true Arctic baleen whale , has recovered from overhunting the 19th and early 20th centuries .
Furthermore , the vanishing sea ice has at least initially been a boon for their population numbers in certain sectors of the Arctic , according to scientist Craig @ @ @ @ @ @ @ has actually benefitted bowheads ; however , they do face threats , ” George said .
Specifically , the warming waters of the Arctic means humpback and orca whales are increasing their range farther north .
Regarding humpback whales , it means more competition for krill .
Regarding orcas , it means predation as the killer whales will hunt the bowhead whale calves .
Also , retreating sea ice may mean more industrial shipping or oil exploration , which could also have deleterious effects on the bowhead ’ s numbers — making their @ @ @ @ @ @ @ told , this year ’ s report card portrays a region amid a fundamental transition from the cold frozen landscape to one that is thawed and warmer .
Whether this will produce rising seas and debilitate the creatures that inhabit the Arctic remains to be seen .
NOAA also released its November climate report on Tuesday , finding the past month was the fourth-warmest November on record .
The report also noted the Atlantic hurricane season was the most active on record .
“ Thirty named storms formed in the Atlantic , which @ @ @ @ @ @ @ in 2005 , ” the report states .

The National Oceanic and Atmospheric Administration's annual report card on the Arctic made one thing clear: the Arctic of the past has melted away.
(CN) — The National Oceanic and Atmospheric Administration’s annual Arctic Report Card released Tuesday painted an unequivocally grim portrait of a region and planet in peril, with permafrost shorelines crumbling, sea ice melting at increasing rates and the biology of the remote region undergoing major alterations. In short, the old Arctic of the 1980s is gone.
“The Arctic really has achieved a new normal,” said Jackie Richter-Menge, a researcher with the U.S. Arctic Research Commission. “It means warmer temperatures, a less frozen landscape and changed biological activity in both the ocean and the land basin ecosystem.”
Richter-Menge is partially retired as an Arctic scientist but stays involved in crafting select reports such as NOAA’s 2020 Arctic Report Card.
She also appeared in a virtual press conference hosted by the American Geophysical Union on Tuesday morning to share her findings. In her portion of the presentation, Richter-Menge drove home the dramatic changes she has witnessed over the course of her career by sharing a simple photo of a swath of the Arctic in 1982 and the same place shown this year.
The difference is stark. In 1982, the area was full of ice with wind-swept snowbanks cropping up every few hundred yards. At present, most of that sea ice is gone, replaced by open ocean dappled with a few floating pods of ice.
“We anticipated the Arctic would warm,” Richter-Menge said of her early research into the region. “But what surprised us was the accelerated rate of warming in the Arctic which now amounts to about twice the rate of warming around the world.”
The latest report card found the warming trend persists, with surface air temperatures in all places north of 60 degrees latitude the second-highest on record and the Eurasian Arctic — the area north of Scandinavia and Russia — seeing high temperature records.
“It is driven by extreme departures over the high Arctic, Siberia and the adjacent seas,” said Richard Thoman of the International Arctic Research Center.
Thoman, a co-author of this year’s report card, said the minimum sea ice extent was also the second-lowest on record.
“While the sea ice minimum gets the press and the headlines, changes in the sea ice thickness and quality along with the timing and seasonality of the sea ice has impacts on everything from the ecosystem to shipping to national security,” he said.
Another knock-on effect of a warming Arctic is the region’s new-fangled susceptibility to large wildfires. While much of the focus has been on wildfires in the American West, including Colorado, Oregon and California, Alaska has also witnessed record-shattering wildfires in the last few years.
“There is a higher probability for large fires around the circumpolar north since the turn of the 20th century,” said Alison York, a scientist with the University of Alaska, Fairbanks. “It sure seems like it’s always happening somewhere.”
Part of the reason is tundra is actually highly flammable due to a high amount of carbon embedded under the frozen portions of the landscape. As those regions defrost, the ground can be prey to fire, which would release vast amounts of carbon into an atmosphere increasingly replete with it.
“Once established, fires can smolder for a long time,” York said.
But the report did contain some good news.
The bowhead whale, the only true Arctic baleen whale, has recovered from overhunting the 19th and early 20th centuries. Furthermore, the vanishing sea ice has at least initially been a boon for their population numbers in certain sectors of the Arctic, according to scientist Craig George.
“The melting sea ice has actually benefitted bowheads; however, they do face threats,” George said.
Specifically, the warming waters of the Arctic means humpback and orca whales are increasing their range farther north.
Regarding humpback whales, it means more competition for krill. Regarding orcas, it means predation as the killer whales will hunt the bowhead whale calves.
Also, retreating sea ice may mean more industrial shipping or oil exploration, which could also have deleterious effects on the bowhead’s numbers — making their gains short-term and ultimately fleeting.
All told, this year’s report card portrays a region amid a fundamental transition from the cold frozen landscape to one that is thawed and warmer. Whether this will produce rising seas and debilitate the creatures that inhabit the Arctic remains to be seen.
NOAA also released its November climate report on Tuesday, finding the past month was the fourth-warmest November on record. The report also noted the Atlantic hurricane season was the most active on record.
“Thirty named storms formed in the Atlantic, which breaks the previous record of 27 set in 2005,” the report states.


Top Eight

Your Tuesday night briefing from the staff of Courthouse News Top eight stories for today including the FDA verified the safety and efficacy of a Covid-19 vaccine developed by Pfizer ; Justice Clarence Thomas voiced annoyance at a case that seeks to update a 1990s-era law targeting and prohibiting robotic prerecorded calls so that text messages are also covered ; President Trump ’ s losing election campaign and the lawyer who said his top election-security official should be shot were hit with defamation claims , and more .
Sign up for the CNS Top Eight , a roundup of the @ @ @ @ @ @ @ to your inbox Monday through Friday .
1 . )
A detailed analysis released by the U.S. Food and Drug Administration on Tuesday verified the safety and efficacy of a Covid-19 vaccine developed by Pfizer , two days before a meeting to recommend the vaccine for emergency use .
2 . )
Justice Clarence Thomas voiced annoyance Tuesday at a case that seeks to update a 1990s-era law targeting and prohibiting robotic prerecorded calls so that text messages are also covered .
3 . )
President Trump ’ s losing election campaign and @ @ @ @ @ @ @ official Chris Krebs should be shot were hit Tuesday with defamation claims .
4 . )
The Trump administration pushed the D.C .
Circuit on Tuesday to let it label immigrants as ineligible for asylum at the U.S.-Mexico border .
5 . )
President-elect Joe Biden detailed his coronavirus plans for the first 100 days in office on Tuesday by outlining three main objectives — mandating masks in federal buildings and other places under federal jurisdiction , opening the vast majority of schools in America and distributing 100 million vaccines to waiting Americans @ @ @ @ @ @ @ Court heard arguments Tuesday in a set of lawsuits challenging local health officials ’ authority to close schools , including religious ones , for in-person instruction amid the coronavirus pandemic .
7 . )
In the wake of an investigation triggered by the murder of soldier Vanessa Guillen , Army Secretary Ryan McCarthy announced Tuesday that 14 leaders at Texas ’ Fort Hood have been fired or suspended from their positions .
8 . )
Rejecting protests from Hungary and Poland , the European Union ’ s top court ruled Tuesday that the @ @ @ @ @ @ @ outside their home countries .

Top eight stories for today including the FDA verified the safety and efficacy of a Covid-19 vaccine developed by Pfizer; Justice Clarence Thomas voiced annoyance at a case that seeks to update a 1990s-era law targeting and prohibiting robotic prerecorded calls so that text messages are also covered; President Trump’s losing election campaign and the lawyer who said his top election-security official should be shot were hit with defamation claims, and more.
Your Tuesday night briefing from the staff of Courthouse News
Top eight stories for today including the FDA verified the safety and efficacy of a Covid-19 vaccine developed by Pfizer; Justice Clarence Thomas voiced annoyance at a case that seeks to update a 1990s-era law targeting and prohibiting robotic prerecorded calls so that text messages are also covered; President Trump’s losing election campaign and the lawyer who said his top election-security official should be shot were hit with defamation claims, and more.
Sign up for the CNS Top Eight, a roundup of the day’s top stories delivered directly to your inbox Monday through Friday.
National
1.) A detailed analysis released by the U.S. Food and Drug Administration on Tuesday verified the safety and efficacy of a Covid-19 vaccine developed by Pfizer, two days before a meeting to recommend the vaccine for emergency use.
A nurse holds a phial of the Pfizer-BioNTech COVID-19 vaccine at Guy’s Hospital in London, Tuesday, Dec. 8, 2020. U.K. health authorities rolled out the first doses of a widely tested and independently reviewed COVID-19 vaccine Tuesday, starting a global immunization program that is expected to gain momentum as more serums win approval. (AP Photo/Frank Augstein, Pool)
2.) Justice Clarence Thomas voiced annoyance Tuesday at a case that seeks to update a 1990s-era law targeting and prohibiting robotic prerecorded calls so that text messages are also covered.
FILE - In this Aug. 21, 2018, file photo, a Facebook start page is shown on a smartphone in Surfside, Fla. Facebook says a bug in its anti-spam system is blocking the publication of links to news stories about the coronavirus. (AP Photo/Wilfredo Lee, File)
3.) President Trump’s losing election campaign and the lawyer who said his top election-security official Chris Krebs should be shot were hit Tuesday with defamation claims.
FILE - In this May 22, 2019, file photo, Christopher Krebs, director of the Cybersecurity and Infrastructure Security Agency, testifies on Capitol Hill in Washington. President Donald Trump on Tuesday, Nov. 17, 2020, fired Krebs, the director of the federal agency that vouched for the reliability of the 2020 election. Trump fired Krebs in a tweet, saying his recent statement defending the security of the election was “highly inaccurate.” (AP Photo/Carolyn Kaster, File)
4.) The Trump administration pushed the D.C. Circuit on Tuesday to let it label immigrants as ineligible for asylum at the U.S.-Mexico border.
FILE - In this July 4, 2019 file photo, a group of asylum seekers cross the border between El Paso, Texas, and Juarez, Chihuahua, Mexico, Thursday, July 4, 2019. (Mark Lambie/The El Paso Times via AP)
5.) President-elect Joe Biden detailed his coronavirus plans for the first 100 days in office on Tuesday by outlining three main objectives — mandating masks in federal buildings and other places under federal jurisdiction, opening the vast majority of schools in America and distributing 100 million vaccines to waiting Americans.
President-elect Joe Biden speaks about jobs at The Queen theater, Friday, Dec. 4, 2020, in Wilmington, Del. (AP Photo/Andrew Harnik)
Regional
6.) The Wisconsin Supreme Court heard arguments Tuesday in a set of lawsuits challenging local health officials’ authority to close schools, including religious ones, for in-person instruction amid the coronavirus pandemic.
A crew of custodial staff clean a classroom at Richard A. Simpson Elementary School in Arnold on Thursday, Nov. 5, 2020. The school went to fully virtual learning on Monday, Nov. 2 after more than 5% of the staff and students tested positive for COVID-19, they will stay virtual until Monday Nov.16 after ten work days. (Colter Peterson/St. Louis Post-Dispatch via AP)
7.) In the wake of an investigation triggered by the murder of soldier Vanessa Guillen, Army Secretary Ryan McCarthy announced Tuesday that 14 leaders at Texas’ Fort Hood have been fired or suspended from their positions.
FILE - In this April 2, 2014, file photo, members of the media wait outside of the Bernie Beck Gate, an entrance to the Fort Hood military base in Fort Hood, Texas. Federal agents have seized more than 20 vehicles and the money in 10 bank accounts from a couple of U.S. Army veterans in Texas, who they say used personal information stolen from soldiers to defraud the military out of as much as $11 million. In an affidavit filed in court in June 2020 seeking to search the couple's home in Killeen, near Fort Hood, investigators described how they allegedly used a transportation reimbursement program to swindle the Army out of $2.3 million to $11.3 million. (AP Photo/Tamir Kalifa, File)
International
8.) Rejecting protests from Hungary and Poland, the European Union’s top court ruled Tuesday that the bloc can tighten rules governing workers sent outside their home countries.


courthousenews--2020-12-08--Judge Hears Big Pharma Case Against Minnesota Insulin Program

MINNEAPOLIS ( CN ) — A challenge to Minnesota ’ s effort to put cheap insulin in the hands of impoverished diabetics faced its first hurdle Tuesday in federal court , where a pharmaceutical lobbying group argued for an injunction to prohibit the law ’ s enforcement .
At issue is the Alec Smith Insulin Affordability Act , a law passed last year to combat the skyrocketing prices of insulin by allowing certain low-income diabetics to buy a 30-day supply of the lifesaving hormone for just $ 35 .
The law , named for a 26-year-old Minneapolis man who died @ @ @ @ @ @ @ passed both the Democrat-controlled Minnesota House and the state ’ s Republican-run Senate with bipartisan support .
The Pharmaceutical Research and Manufacturers of America , or PhRMA , filed suit in July immediately after the law went into effect , prompting outcry from blindsided state politicos .
In negotiations with Republicans , Democratic Governor Tim Walz said lawmakers had been assured that industry groups would not sue if a compromised version of the original bill was passed .
The lobbying group , represented by Joseph Guerra of the Washington firm Sidley Austin , @ @ @ @ @ @ @ the law created an unconstitutional taking of manufacturers ’ insulin by requiring them to provide it at a reduced price .
PhRMA is asking Senior U.S. District Judge David S. Doty , a Ronald Reagan appointee , for summary judgment , or failing that , an injunction preventing enforcement of the law .
“ We are in a situation in which obviously the insulin is not the product of any program Minnesota has put in place .
They ’ re simply trying to take away the insulin , ” he said .
“ @ @ @ @ @ @ @ right to continue , week after week , month after month , year after year , violating the takings clause.
” Minnesota Assistant Attorney General Sarah Krans , meanwhile , argued that no taking was occurring since the manufacturers had similar programs making insulin available at the same price .
If it was , she added , it would be compensable through inverse-condemnation proceedings , meaning the contested law is still constitutional .
She also argued for dismissal on the grounds that the manufacturers , not PhRMA , had standing to bring such @ @ @ @ @ @ @ named did not have authority to enforce the law being challenged , and that the venue was improper in any case .
“ There can be no question that the taking of insulin is compensable .
It is a commodity , ” she said .
“ PhRMA ’ s unsupported assumption that there will be a multiplicity of suits does not render the inverse condemnation proceedings inadequate.
” Krans added , “ Because the takings claims here were brought by the wrong plaintiff , in the wrong court , seeking the wrong kind @ @ @ @ @ @ @ dismissed.
” Guerra took issue with that argument .
“ No one knows how much insulin is going to be taken under the statute .
The only thing we do know is that the program… goes on indefinitely , ” he said .
“ We have a right , where we ’ re facing the prospect of multiple suits , to an injunction.
” He also alluded to the possibility of manufacturers having to bring those consolidated inverse-condemnation suits over and over again , with six-year gaps between each .
“ The manufacturers @ @ @ @ @ @ @ of just compensation .
Six years is not that , ” Guerra said .
Alec Smith ’ s mother , Nicole Smith-Holt , leads the Minnesota chapter of Insulin4all , a campaign for insulin access started by the diabetes-advocacy nonprofit T1International .
The campaign has joined the case as amicus curiae and opposed PhRMA ’ s motion for summary judgment .
After tuning in to the Zoom hearing , Smith-Holt said she was disappointed by PhRMA ’ s arguments .
“ I was frustrated , of course , with PhRMA ’ s indication @ @ @ @ @ @ @ helping to save people ’ s lives , ” she said in an interview .
“ That was really frustrating to me.
” Smith-Holt added that the pandemic is escalating issues of insulin affordability , with lost jobs putting many diabetics out of work and health insurance and closed borders preventing Minnesotans from buying the hormone for a fraction of the price in Canada .
Prices in Minnesota , she said , have risen to just under $ 350 a vial , which only gets most diabetics through about a week .
“ @ @ @ @ @ @ @ who doesn ’ t have insurance… it ’ s going to cost that person about $ 1,300 to $ 1,400 ” per month , she said .
“ And then you throw in the needles , and the test strips you need , and you ’ re looking at… more than most people ’ s mortgages.
” Smith-Holt said the programs provided by the manufacturers also leave major gaps .
“ They ’ re not enough .
They ’ re difficult to apply for , they ’ re difficult to be approved for @ @ @ @ @ @ @ throw up hurdles , ” she added .
“ The insulin manufacturing companies have always stood by the fact that they offer these programs .
But these programs aren ’ t working for people… people are dying , so what they ’ re doing is not enough .
”

A challenge to Minnesota’s effort to put cheap insulin in the hands of impoverished diabetics faced its first hurdle Tuesday in federal court, where a pharmaceutical lobbying group argued for an injunction to prohibit the law’s enforcement.
MINNEAPOLIS (CN) — A challenge to Minnesota’s effort to put cheap insulin in the hands of impoverished diabetics faced its first hurdle Tuesday in federal court, where a pharmaceutical lobbying group argued for an injunction to prohibit the law’s enforcement.
At issue is the Alec Smith Insulin Affordability Act, a law passed last year to combat the skyrocketing prices of insulin by allowing certain low-income diabetics to buy a 30-day supply of the lifesaving hormone for just $35.
The law, named for a 26-year-old Minneapolis man who died in 2017 while rationing his insulin, passed both the Democrat-controlled Minnesota House and the state’s Republican-run Senate with bipartisan support.
The Pharmaceutical Research and Manufacturers of America, or PhRMA, filed suit in July immediately after the law went into effect, prompting outcry from blindsided state politicos. In negotiations with Republicans, Democratic Governor Tim Walz said lawmakers had been assured that industry groups would not sue if a compromised version of the original bill was passed.
The lobbying group, represented by Joseph Guerra of the Washington firm Sidley Austin, argued in Tuesday’s hearing that the law created an unconstitutional taking of manufacturers’ insulin by requiring them to provide it at a reduced price.
PhRMA is asking Senior U.S. District Judge David S. Doty, a Ronald Reagan appointee, for summary judgment, or failing that, an injunction preventing enforcement of the law.
“We are in a situation in which obviously the insulin is not the product of any program Minnesota has put in place. They’re simply trying to take away the insulin,” he said. “The state does not have any sovereign right to continue, week after week, month after month, year after year, violating the takings clause.”
Minnesota Assistant Attorney General Sarah Krans, meanwhile, argued that no taking was occurring since the manufacturers had similar programs making insulin available at the same price. If it was, she added, it would be compensable through inverse-condemnation proceedings, meaning the contested law is still constitutional.
She also argued for dismissal on the grounds that the manufacturers, not PhRMA, had standing to bring such a case, that the individual defendants named did not have authority to enforce the law being challenged, and that the venue was improper in any case.
“There can be no question that the taking of insulin is compensable. It is a commodity,” she said. “PhRMA’s unsupported assumption that there will be a multiplicity of suits does not render the inverse condemnation proceedings inadequate.”
Krans added, “Because the takings claims here were brought by the wrong plaintiff, in the wrong court, seeking the wrong kind of relief, this case should be dismissed.”
Guerra took issue with that argument.
“No one knows how much insulin is going to be taken under the statute. The only thing we do know is that the program… goes on indefinitely,” he said. “We have a right, where we’re facing the prospect of multiple suits, to an injunction.”
He also alluded to the possibility of manufacturers having to bring those consolidated inverse-condemnation suits over and over again, with six-year gaps between each.
“The manufacturers are entitled to a reasonably prompt award of just compensation. Six years is not that,” Guerra said.
Alec Smith’s mother, Nicole Smith-Holt, leads the Minnesota chapter of Insulin4all, a campaign for insulin access started by the diabetes-advocacy nonprofit T1International. The campaign has joined the case as amicus curiae and opposed PhRMA’s motion for summary judgment.
After tuning in to the Zoom hearing, Smith-Holt said she was disappointed by PhRMA’s arguments.
“I was frustrated, of course, with PhRMA’s indication that they are suffering irreparable harm by helping to save people’s lives,” she said in an interview. “That was really frustrating to me.”
Smith-Holt added that the pandemic is escalating issues of insulin affordability, with lost jobs putting many diabetics out of work and health insurance and closed borders preventing Minnesotans from buying the hormone for a fraction of the price in Canada.
Prices in Minnesota, she said, have risen to just under $350 a vial, which only gets most diabetics through about a week.
“If we’re talking about somebody who doesn’t have insurance… it’s going to cost that person about $1,300 to $1,400” per month, she said. “And then you throw in the needles, and the test strips you need, and you’re looking at… more than most people’s mortgages.”
Smith-Holt said the programs provided by the manufacturers also leave major gaps.
“They’re not enough. They’re difficult to apply for, they’re difficult to be approved for, they’re cumbersome, they throw up hurdles,” she added. “The insulin manufacturing companies have always stood by the fact that they offer these programs. But these programs aren’t working for people… people are dying, so what they’re doing is not enough.”


Churches & Covid

PASADENA , Calif. — Following the U.S. Supreme Court ’ s recent orders to reconsider whether Covid-induced caps on attendance @ @ @ @ @ , the Ninth Circuit on Tuesday ordered a federal judge to do the same regarding @ @ @ @ @ s demand for an injunction .

The technical storage or access that is used exclusively for statistical purposes.
The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.


courthousenews--2020-12-08--Trump Sets Up Long Fight Over Defense Bill With Veto Vow

WASHINGTON ( CN ) — As his single term concludes , President Donald Trump kicked up more rancor by vowing to veto the bipartisan annual defense spending bill passed 335-78 by the House of Representatives on Tuesday evening .
A two-thirds majority in the House , or 290 of its 435-member roster , are needed to override a veto from the president .
Even with enough votes to veto-proof the 2021 National Defense Authorization Act , however , House Majority Leader Steny Hoyer expressed apprehension over Trump ’ s opposition .
Since Senate rules give the president 10 days to @ @ @ @ @ @ @ remitted to Congress , Trump could ostensibly use this period to hang onto the legislation and employ what is known as a “ pocket veto ” as he runs down the clock .
This could be forced lawmakers back to Capitol Hill right around Christmas in an attempt to override him .
If the bill is not approved by January 3 when the new Congress is sworn in , it expires , and a new series of negotiations would have to begin .
President Trump contends that two factors justify his veto of @ @ @ @ @ @ @ , the package includes a provision he has publicly decried as an affront to the preservation of national history : The gradual renaming of Confederate installations over the next three years by the Pentagon .
Specifically , the measure establishes a commission renaming items that commemorate Confederate darlings or volunteers who hoisted the Confederate States of America banner .
Over three years , it will be left to the secretary of defense to spearhead the commission devoted to removing names , symbols , displays , monuments and other related paraphernalia .
Second , @ @ @ @ @ @ @ include a repeal of a law gnawing at President Trump : Section 230 of the Telecommunications Act .
Section 230 gives social media companies protection from lawsuits if a third-party user posts obscene or hate-based content on their platform .
As Twitter has regularly flagged Trump ’ s tweets featuring unsubstantiated claims of voter fraud in the November election , the president ’ s appetite to see the repeal inserted slapdash has only intensified .
An October study by the London-based Institute for Strategic Dialogue found conservative voices outnumbered liberal ones considerably in @ @ @ @ @ @ @ a range of platforms including Facebook , Twitter , Reddit , Instagram and 4Chan .
Likewise the nonprofit watchdog Media Matters for America found that right-leaning Facebook pages outpaced left-leaning ones over the last nine months .
Notably , the study found 43 % of all interactions earned by political pages on Facebook in America skew conservative while accounting for just 26 % of all posts across the platform .
During debate on the House floor Tuesday , the Democratic chair of the House Armed Services Committee offered neither sympathy nor compromise to @ @ @ @ @ @ @ oppose the NDAA on the Section 230 basis .
“ That section is not going to be addressed in this bill , ” said Representative Adam Smith of Connecticut Smith said before beseeching fellow .
“ This is the one thing , the one thing in this very tumultuous time that we ought to be able to agree on.
” Named this year in honor of retiring Republican Representative Mac Thornberry of Texas , the legislation is stacked with bipartisan policy .
It features a measure extending bonus and special pay for servicemembers @ @ @ @ @ @ @ uniformed members .
It also features measures spurring the Defense Department to launch diversity initiatives for staff and extends benefits to veterans exposed to Agent Orange .
In a new move , the benefits are being extended to servicemembers who later developed thyroid and bladder cancer .
There is also funding for nuclear safety and arsenal maintenance as well as funding for weapons systems vital to national security .
Another measure in the bill , launched by Representative Jackie Speier , responds to the epidemic of sexual assault in the military , making @ @ @ @ @ @ @ to overturn convictions while also creating , for the first time , a process for overturned convictions to be reinstated on appeal .
Other attached provisions include new mandates for reporting sexual assault data to Congress and the formation of a confidential reporting mechanism for victims who wish to report a crime but fear reprisal if doing so through the chain of command .
The Illicit Cash Act , short for Improving Laundering Laws and Increasing Comprehensive Information Tracking of Criminal Activity in Shell Holdings Act , is also included .
Jointly sponsored @ @ @ @ @ @ @ and Doug Jones of Alabama , as well as Republican Senator Mike Rounds of South Dakota , the bill , requires shell companies , for the first time , to disclose their true owners to the Department of Treasury before they can do business with American banks .

As his single term concludes, President Donald Trump kicked up more rancor Tuesday by vowing to veto the bipartisan annual defense spending bill just passed by the House of Representatives.
WASHINGTON (CN) — As his single term concludes, President Donald Trump kicked up more rancor by vowing to veto the bipartisan annual defense spending bill passed 335-78 by the House of Representatives on Tuesday evening.
A two-thirds majority in the House, or 290 of its 435-member roster, are needed to override a veto from the president. Even with enough votes to veto-proof the 2021 National Defense Authorization Act, however, House Majority Leader Steny Hoyer expressed apprehension over Trump’s opposition.
Since Senate rules give the president 10 days to sign the bill before it must be remitted to Congress, Trump could ostensibly use this period to hang onto the legislation and employ what is known as a “pocket veto” as he runs down the clock.
This could force lawmakers back to Capitol Hill right around Christmas in an attempt to override him.
If the bill is not approved by January 3 when the new Congress is sworn in, it expires, and a new series of negotiations would have to begin.
President Trump contends that two factors justify his veto of the $740 billion package.
First, the package includes a provision he has publicly decried as an affront to the preservation of national history: The gradual renaming of Confederate installations over the next three years by the Pentagon. Specifically, the measure establishes a commission renaming items that commemorate Confederate darlings or volunteers who hoisted the Confederate States of America banner. Over three years, it will be left to the secretary of defense to spearhead the commission devoted to removing names, symbols, displays, monuments and other related paraphernalia.
Second, the massive 4,500-plus page bill does not include a repeal of a law gnawing at President Trump: Section 230 of the Telecommunications Act.
Section 230 gives social media companies protection from lawsuits if a third-party user posts obscene or hate-based content on their platform.
As Twitter has regularly flagged Trump’s tweets featuring unsubstantiated claims of voter fraud in the November election, the president’s appetite to see the repeal inserted slapdash has only intensified.
An October study by the London-based Institute for Strategic Dialogue found conservative voices outnumbered liberal ones considerably in an analysis of 2 million posts across a range of platforms including Facebook, Twitter, Reddit, Instagram and 4Chan.
Likewise the nonprofit watchdog Media Matters for America found that right-leaning Facebook pages outpaced left-leaning ones over the last nine months. Notably, the study found 43% of all interactions earned by political pages on Facebook in America skew conservative while accounting for just 26% of all posts across the platform.
During debate on the House floor Tuesday, the Democratic chair of the House Armed Services Committee offered neither sympathy nor compromise to the president or those lawmakers who would oppose the NDAA on the Section 230 basis.
“That section is not going to be addressed in this bill,” said Representative Adam Smith of Connecticut Smith said before beseeching fellow. “This is the one thing, the one thing in this very tumultuous time that we ought to be able to agree on.”
Named this year in honor of retiring Republican Representative Mac Thornberry of Texas, the legislation is stacked with bipartisan policy. It features a measure extending bonus and special pay for servicemembers, including a 3% raise for uniformed members. It also features measures spurring the Defense Department to launch diversity initiatives for staff and extends benefits to veterans exposed to Agent Orange. In a new move, the benefits are being extended to servicemembers who later developed thyroid and bladder cancer.
There is also funding for nuclear safety and arsenal maintenance as well as funding for weapons systems vital to national security.
Another measure in the bill, launched by Representative Jackie Speier, responds to the epidemic of sexual assault in the military, making it harder for members of the military to overturn convictions while also creating, for the first time, a process for overturned convictions to be reinstated on appeal.
Other attached provisions include new mandates for reporting sexual assault data to Congress and the formation of a confidential reporting mechanism for victims who wish to report a crime but fear reprisal if doing so through the chain of command.
The Illicit Cash Act, short for Improving Laundering Laws and Increasing Comprehensive Information Tracking of Criminal Activity in Shell Holdings Act, is also included. Jointly sponsored by Democratic Senators Mark Warner of Virginia and Doug Jones of Alabama, as well as Republican Senator Mike Rounds of South Dakota, the bill, requires shell companies, for the first time, to disclose their true owners to the Department of Treasury before they can do business with American banks.


courthousenews--2020-12-08--NY Judge Orders Recount in Tight House Race Where Votes Were Killed Quietly

OSWEGO , N.Y. ( CN ) — Ordering a recount in the undecided upstate congressional race , a New York judge fumed Tuesday that election officials in eight counties had willfully rejected 1,500 absentee ballots that presumably came from Democratic voters .
Justice Scott J. DelConte emphasized that unlike the unsubstantiated accusations of pervasive vote fraud still pestering the presidential race , the claims against the boards of election for Oswego , Oneida , Madison , Herkimer , Chenango , Broome , Cortland and Tioga counties involve “ hundreds of ballots that were never canvassed … in the first place.
@ @ @ @ @ @ @ is absolutely no evidence or even an allegation before this court of any fraud on the part of the boards or the campaigns , ” he wrote .
“ Nor is there any evidence that the boards ’ failures and errors were a result of the pandemic , recent amendments to the election law , or a strain upon the Boards of Elections ’ capacity and resources .
“ Instead , the problems experienced by the candidates and , consequently , all of the voters across the eight counties in New York ’ @ @ @ @ @ @ @ direct result of ‘ the careless or inadvertent failure to follow the mandate of statute and case law ’ by the Boards of Elections.
” On election night last month , unofficial results for early and same day in-person voting put incumbent Democrat Anthony Brindisi some 28,000 votes behind his Republican challenger , Claudia Tenney , who held the seat from 2017 to 2019 .
But this was before some 60,000 absentee , affidavit , military and special ballots had been canvassed and counted .
Like the “ red mirage ” scenario that @ @ @ @ @ @ @ Trump ahead on election night before a wave of Democrat votes poured in once absentee ballots were counted , Brindisi overtook Tenney by a narrow 12-vote margin as the upstate New York county boards of elections processed and counted additional votes .
Lawyers for Tenney struck out with their bid to have the eight counties simply end canvasing and certify her as the winner .
“ Tenney ’ s proposed resolution would require that this court ignore multiple errors by the Respondent Boards of Elections , disregard proper challenges to invalid ballots that @ @ @ @ @ @ @ not counted by both parties , and ignore hundreds of ballots that were never canvassed in the first place , ” DelConte wrote .
“ That is not the role of the court .
The winner of this election must be decided by the real parties in interest : the voters .
And to do so , every valid vote must be counted.
” “ The Oneida and Cortland County Boards of Elections ( and perhaps others ) , failed to properly process hundreds of affidavit ballots , ” the 21-page opinion bellows @ @ @ @ @ @ @ canvassed the affidavit ballots as expressly required under Election Law $ 9-209 but , instead , administratively rejected them , and denied the campaigns an opportunity to object to the boards ’ refusal to cast those ballots.
” Tenney campaign spokesman Sean Kennedy said on Tuesday that her campaign believes that the retallying of the votes ordered by Judge DelConte will confirm her win .
“ It appears that this ruling will see to it that every legal vote is counted , ” Kennedy said in a statement Tuesday evening .
“ If @ @ @ @ @ @ @ we are confident that we will prevail and Claudia will assume office as the Congresswoman for New York ’ s 22nd District.
” An early and vocal supporter of President Donald Trump , Tenney previously served in the New York State Assembly from 2011 to 2017 .
Though she unsuccessfully challenged incumbent U.S. Representative Richard L. Hanna in the 2014 Republican primary , she was elected to Congress in 2016 after Hanna retired .
Brindisi wrested that seat from her in 2018 , declaring victory with a lead by just shy of 4,000 @ @ @ @ @ @ @ returned a request for comment .
“ It is more important that this election is decided right , than that it is decided right now , ” DelConte wrote .
“ The court ’ s role is not to rewrite the law and make the canvassing process convenient , nor to reach an amicable resolution , ” the Oswego County Supreme Court ruling states .
“ Instead , the court must make sure that all parties have complied with the plain and unambiguous mandates of the election law , so that the correct @ @ @ @ @ @ @ the issue of 1,500 absentee ballots being summarily rejected without canvassing , the opinion points to the bizarre discovery of 12 absentee ballots “ inexplicably found in a drawer ” A month after Election Day , the Oswego County Supreme Court now says officials in Oswego and seven other upstate counties must immediately correct all canvasing errors and possibly recount some of the hundreds of disputed absentee and affidavit ballots cast in the undecided House race .
“ The right to vote means that every single valid vote must be counted , ” @ @ @ @ @ @ @ .
“ Correcting the errors of the Boards of Elections or , where they can not be corrected , directing the recanvassing of those ballots , is the only way to accomplish this , no matter how time consuming it may be .
”

Ordering a recount in the undecided upstate congressional race, a New York judge fumed Tuesday that election officials in eight counties had willfully rejected 1,500 absentee ballots that presumably came from Democratic voters.
OSWEGO, N.Y. (CN) — Ordering a recount in the undecided upstate congressional race, a New York judge fumed Tuesday that election officials in eight counties had willfully rejected 1,500 absentee ballots that presumably came from Democratic voters.
Justice Scott J. DelConte emphasized that unlike the unsubstantiated accusations of pervasive vote fraud still pestering the presidential race, the claims against the boards of election for Oswego, Oneida, Madison, Herkimer, Chenango, Broome, Cortland and Tioga counties involve “hundreds of ballots that were never canvassed ... in the first place.”
“To be clear, there is absolutely no evidence or even an allegation before this court of any fraud on the part of the boards or the campaigns,” he wrote. “Nor is there any evidence that the boards' failures and errors were a result of the pandemic, recent amendments to the election law, or a strain upon the Boards of Elections' capacity and resources.
“Instead, the problems experienced by the candidates and, consequently, all of the voters across the eight counties in New York's 22nd Congressional District, were a direct result of ‘the careless or inadvertent failure to follow the mandate of statute and case law’ by the Boards of Elections.”
On election night last month, unofficial results for early and same day in-person voting put incumbent Democrat Anthony Brindisi some 28,000 votes behind his Republican challenger, Claudia Tenney, who held the seat from 2017 to 2019.
But this was before some 60,000 absentee, affidavit, military and special ballots had been canvassed and counted.
Like the “red mirage” scenario that some experts predicted would show President Donald Trump ahead on election night before a wave of Democrat votes poured in once absentee ballots were counted, Brindisi overtook Tenney by a narrow 12-vote margin as the upstate New York county boards of elections processed and counted additional votes.
Lawyers for Tenney struck out with their bid to have the eight counties simply end canvasing and certify her as the winner.
“Tenney's proposed resolution would require that this court ignore multiple errors by the Respondent Boards of Elections, disregard proper challenges to invalid ballots that were counted and valid ballots that were not counted by both parties, and ignore hundreds of ballots that were never canvassed in the first place,” DelConte wrote. “That is not the role of the court. The winner of this election must be decided by the real parties in interest: the voters. And to do so, every valid vote must be counted.”
DelConte highlighted evidence suggesting many legal ballots were improperly discounted.
“The Oneida and Cortland County Boards of Elections (and perhaps others), failed to properly process hundreds of affidavit ballots,” the 21-page opinion bellows. “Specifically, those boards never canvassed the affidavit ballots as expressly required under Election Law $ 9-209 but, instead, administratively rejected them, and denied the campaigns an opportunity to object to the boards' refusal to cast those ballots.”
Tenney campaign spokesman Sean Kennedy said on Tuesday that her campaign believes that the retallying of the votes ordered by Judge DelConte will confirm her win.
“It appears that this ruling will see to it that every legal vote is counted,” Kennedy said in a statement Tuesday evening. “If the proper legal procedures are followed, we are confident that we will prevail and Claudia will assume office as the Congresswoman for New York’s 22nd District.”
An early and vocal supporter of President Donald Trump, Tenney previously served in the New York State Assembly from 2011 to 2017. Though she unsuccessfully challenged incumbent U.S. Representative Richard L. Hanna in the 2014 Republican primary, she was elected to Congress in 2016 after Hanna retired. Brindisi wrested that seat from her in 2018, declaring victory with a lead by just shy of 4,000 votes.
Representatives for Brindisi have not returned a request for comment.
“It is more important that this election is decided right, than that it is decided right now,” DelConte wrote.
“The court's role is not to rewrite the law and make the canvassing process convenient, nor to reach an amicable resolution,” the Oswego County Supreme Court ruling states. “Instead, the court must make sure that all parties have complied with the plain and unambiguous mandates of the election law, so that the correct result is reached.”
In addition to the issue of 1,500 absentee ballots being summarily rejected without canvassing, the opinion points to the bizarre discovery of 12 absentee ballots “inexplicably found in a drawer”
A month after Election Day, the Oswego County Supreme Court now says officials in Oswego and seven other upstate counties must immediately correct all canvasing errors and possibly recount some of the hundreds of disputed absentee and affidavit ballots cast in the undecided House race.
“The right to vote means that every single valid vote must be counted,” Justice DelConte wrote in a 20-page opinion. “Correcting the errors of the Boards of Elections or, where they cannot be corrected, directing the recanvassing of those ballots, is the only way to accomplish this, no matter how time consuming it may be.”


Disobedient Pastor

SAN JOSE , Calif. — A Santa Clara County judge found Pastor Mike McClure of Calvary Chapel San Jose in @ @ @ @ @ to stop holding indoor worship services with hundreds of people in attendance during a deadly @ @


Signature Gathering

HELENA , Mont .
— A federal court in Montana ruled against groups and individuals challenging the constitutionality of a @ @ @ @ @ gatherers for initiatives , referendums , or a constitutional convention to be residents of the @ @ @ @ @ based on the number of signatures they gather .