The Tap: Tuesday, December 6, 2016

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The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

Review of the day

The excerpts below were compiled from issue #45 of The Tap, which was published on December 10, 2016. READ THE FULL VERSION HERE.

Federal

SCOTUS On Tap: Patents and Insider Trading

• The U.S. Supreme Court issued three unanimous opinions on Tuesday. To date, the court has issued four opinions in argued cases—each of which was unanimously decided—this term.
  • In Samsung Electronics v. Apple, the court reversed and remanded the judgment of the U.S. Court of Appeals for the Federal Circuit. In an opinion by Justice Sonia Sotomayor, the court held that the term “article of manufacture” under Section 289 of the Patent Act was sufficiently broad to include both products sold to consumers, as well as components of those products. As Justice Sotomayor noted, “A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture.” The case will return to the federal circuit for additional proceedings based on the court’s interpretation of the Patent Act.
  • In Salman v. United States, the court affirmed the judgment of the U.S. Court of Appeals for the Ninth Circuit. In an opinion by Justice Samuel Alito, the court held that the Ninth Circuit’s interpretation of the Supreme Court’s holding in Dirks v. SEC was correctly applied in the case. Dirks is a 1983 Supreme Court decision that defines “personal benefit” requirements for insider trading cases. In Justice Alito’s words, “Dirks specifies that when a tipper gives inside information to 'a trading relative or friend,' the jury can infer that the tipper meant to provide the equivalent of a cash gift. In such situations, the tipper benefits personally because giving a gift of trading information is the same thing as trading by the tipper followed by a gift of the proceeds.” Salman, in trading on information he knew to be improperly disclosed by his brother-in-law, was just as culpable for insider trading as was his brother-in-law. The court rejected Salman’s argument that a requirement of the Second Circuit—that a tipper also receive something of a "pecuniary of similarly valuable nature" in exchange for gifts to friends or family—was required under Dirks in order to prove insider trading.
  • In State Farm v. U.S. ex rel. Rigsby, the court affirmed the judgment of the U.S. Court of Appeals for the Fifth Circuit. In an opinion by Justice Anthony Kennedy, the court held that a breach of the requirement to keep documents under seal for 60 days when bringing lawsuits under the False Claims Act did not automatically merit dismissal of the case in all instances. Justice Kennedy noted that while the False Claims Act did not provide an explicit remedy should the seal requirement be violated, “the FCA’s structure is itself an indication that violating the seal requirement does not mandate dismissal. This Court adheres to the general principle that Congress’ use of 'explicit language' in one provision 'cautions against inferring' the same limitation in another provision ... And the FCA has a number of provisions that do require, in express terms … dismissal …"

• The Supreme Court heard arguments in Life Technologies Corporation v. Promega Corporation. The case came on appeal from the U.S. Court of Appeals for the Federal Circuit. 35 U.S.C. §271(f)(1) states, “Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” Life Technologies challenged the holding of the Federal Circuit that a single component shipped from the United States to its overseas manufacturing facility constituted a “substantial portion of the components of a patented invention” and, subsequently, a patent infringement in violation of federal law.
  • For more about the current Supreme Court term, see Ballotpedia’s Supreme Court 2016 term overview.

Congressional Legislation

• Rep. Jim Jordan (R-Ohio), the outgoing House Freedom Caucus chairman, attempted to force a vote on a resolution to impeach Internal Revenue Service Commissioner John Koskinen, but the move was rejected. The resolution accused Koskinen of impeding a congressional investigation into the IRS’s targeting of conservative groups seeking tax-exempt status.

State

Democratic 527 Group Elects 2017 Leadership

• The Democratic Governors Association (DGA) voted to re-elect Connecticut Governor Dan Malloy (D) for a second one-year term as chair of the organization. In his 2016 term as chair, Malloy helped the DGA to set a fundraising record for a presidential year by collecting $29.2 million through the first three quarters. Democrats lost ground at the gubernatorial level in November’s elections, however. In 2016, Republicans took control of governor’s offices in Missouri, New Hampshire, and Vermont, whereas the sole gubernatorial pick-up for Democrats was in North Carolina. Following swearing-ins, Republicans will control 33 governorships, Democrats will control 16 governorships, and an independent (Bill Walker in Alaska) will control one governorship. Washington Governor Jay Inslee (D) was elected to served as vice chair and chair-elect of the DGA, which will result in him taking office as chair in 2018. New York Governor Andrew Cuomo (D) was elected to serve as the policy chair. The DGA is a 527 group that provides funding and policy consulting to political campaigns.

Resignation Notice

• Kris Hansen (R), of Montana’s 14th State Senate District, announced plans to resign from the Senate following her appointment to state Auditor-elect Matt Rosendale’s staff. She will serve as chief legal counsel for the auditor’s office. Montana law requires the secretary of state to inform county commissioners and the appointee’s respective party within seven days of the vacancy. The party’s central committees then have 45 days to name three possible replacements. The county commissioners then have a 15-day window to select the final appointment from those replacement candidates. Hansen has served in this seat since 2014. The Montana State Senate is currently controlled by Republicans, who have 32 of the 50 seats in the chamber. The state’s House is also controlled by the Republicans, but the governorship is held by Democrat Steve Bullock, preventing a Republican trifecta.

Local

Special Election Watch: Tampa, Florida

• Luis Viera won a runoff election for a seat on the city council of Tampa, Florida. Although elections in the city are officially nonpartisan, Viera is a registered Democrat. His opponent, Jim Davison, is a registered Republican. This special election was scheduled to fill the seat of Councilwoman Lisa J. Montelione (D), who resigned in order to run for the Florida House of Representatives. Tampa is the 53rd-largest city in the United States by population and the third-largest in Florida.

Recalled: East Cleveland, Ohio

• East Cleveland Mayor Gary Norton and City Councilman Thomas Wheeler were recalled from office in Ohio. Norton was previously targeted for recall in 2015, while Wheeler survived recall votes in December 2015 and June 2016. Both officials were targeted for failure to fulfill the duties of their offices as East Cleveland considered bankruptcy and annexation by Cleveland in 2016.

County Board Partisan Switch

• The Los Angeles County Board of Supervisors appointed District 3 Supervisor Sheila Kuehl (D) to the South Coast Air Quality Management District board. Kuehl replaces Michael D. Antonovich (R) on the board, switching the 7-6 Republican majority to a 7-6 Democratic one. Republicans held their majority on the board for 10 months. Kuehl said that she favors a “strongly regulatory” approach, adding, “We need to pay attention to any form of pollution that can be regulated.” The district describes itself as “the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino counties.”

Mayors Talk Climate Change

• Democratic mayors from five large American cities called on Donald Trump to recognize climate change as a “real and urgent threat” as part of the C40 Mayors Summit in Mexico City. The call came on the tails of a C40 report that showed that its 12 member cities from the United States had taken 2,400 individual actions to combat climate change over the past decade. During his campaign, Donald Trump said he supported rescinding the Climate Action Plan. His nominee for head of the Environmental Protection Agency, Scott Pruitt, has criticized the agency’s Clean Power Plan. “Mayors don’t look at climate change as an ideological issue. They look at it as an economic and public health issue,” said C40 President of the Board Michael Bloomberg. C40 is a group of 90 affiliated cities from across the world whose aim is to address climate change.

Sanctuary Cities

• Mayor Jim Kenney (D) of Philadelphia stated that the city would remain a sanctuary city regardless of possible policy changes at the federal level. President-elect Donald Trump had previously suggested he would pull federal funding from cities that did not cooperate with immigration officials. The mayor told PennLive that he wants “everyone to understand that cities, including Philadelphia, have been the bastion of protection for minorities, LGBT people, for immigrants, and we're not walking this back.” Kenney did say, however, that he would cooperate with the new administration on anything he views as “positive.” Philadelphia is the fifth-largest city in the United States by population and the largest in Pennsylvania.

• The city council of Santa Ana, California, voted to make the city a sanctuary city. The move made the city the first in Orange County to declare itself a sanctuary city. The Los Angeles Times called the move “largely symbolic,” noting that the vote was on a nonbinding resolution that did not add any additional protections for immigrants in the country illegally. Santa Ana is the 57th-largest city in the United States by population and the 11th-largest in California.

Baltimore’s New Mayor

• Catherine Pugh (D) was sworn in as the mayor of Baltimore, Maryland. Pugh was elected on November 8, 2016, and replaces Stephanie Rawlings-Blake (D). Pugh is expected to deal with a number of issues as the city’s new mayor, including a record homicide rate, combating police misconduct, and addressing poverty in the city. Baltimore is the 26th-largest city in the United States by population and the largest in Maryland.

Confiscated Firearms: Tucson City Council vs. Arizona State Law

• The city council of Tucson, Arizona, voted unanimously to fight a new state law impacting firearms in court. The city currently destroys confiscated handguns and semi-automatic weapons, though the new state law now requires that they be sold to the state. The state attorney general’s office threatened to take the city to court if it did not stop destroying the firearms. As part of the vote, the council asked the city manager and chief of police to suspend the destruction of confiscated firearms until a resolution is reached in court. Tucson is the 33rd-largest city in the United States by population and the second-largest in Arizona.

Deadlines

• FILING DEADLINE: Deadline passed for candidates in Los Angeles, California, to file to run for the mayor’s seat, eight positions on the city council, city controller, and city attorney. Mayor Eric Garcetti (D) faces two challengers, the current controller and attorney are running unopposed, and incumbents are running for re-election in seven of the eight city council races. A primary election will take place on March 3, 2017, and any candidate can win outright by winning a majority of votes. In races where someone does not win a majority, a general election will take place on May 16, 2017. Los Angeles is the second-largest city in the United States by population and the largest in California.

• FILING DEADLINE: Deadline passed for candidates to file to run for three seats on the Los Angeles Unified School District Board of Education. Nine candidates, including two incumbents, filed to run for the three seats. A primary election will be held on March 3, 2017, with a general election scheduled for May 16, 2017. Similar to the city elections held at the same time, a candidate can win the primary election outright by getting a majority of votes. The school district served 653,826 K-12 students during the 2013-2014 school year, which made it the second-largest school district in the United States.

Preview of the day

The excerpts below were compiled from issue #44 of The Tap, which was published on December 3, 2016. READ THE FULL VERSION HERE.

Federal

• The U.S. Supreme Court will hear arguments in Life Technologies Corporation v. Promega Corporation. The case comes on appeal from the U.S. Court of Appeals for the Federal Circuit. 35 U.S.C. §271(f)(1), states, “Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” Life Technologies is challenging the holding of the Federal Circuit that a single component shipped from the United States to its overseas manufacturing facility constituted a “substantial portion of the components of a patented invention” and, subsequently, a patent infringement in violation of federal law.

Local

• Mayor Gary Norton and Councilman Thomas Wheeler of East Cleveland, Ohio, face recall elections. Both officials are targeted for recall due to concerns about the city's finances and a potential annexation by Cleveland. Wheeler has survived recall votes in December 2015 and June 2016, while Norton was targeted in 2015 but did not face a vote. Norton criticized the recall campaign, calling it “a horrible expenditure of funds given the city's current financial provision.”