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Law professor will argue death penalty, bank discrimination cases before Supreme Court

Monday, October 05, 2015

LAWRENCE — A University of Kansas law professor will argue before the U.S. Supreme Court twice this week in a pair of cases: one involving the Eighth Amendment and capital punishment, and the other alleged discrimination in banking.

Stephen McAllister, the E.S. & Tom W. Hampton Distinguished Professor of Law, will appear before the court today, Oct. 5, in the case Hawkins v. Community Bank of Raymore. On Wednesday, Oct. 7, he will appear on behalf of the state of Kansas in Kansas v. Jonathan Carr and Kansas v. Reginald Carr Jr. These arguments will be McAllister’s eighth and ninth appearances before the high court, respectively.

The Carr case is centered on brothers Jonathan and Reginald Carr, who were convicted of capital murder for brutal quadruple murders they committed in Wichita in December 2000. They were sentenced to death, but the Kansas Supreme Court overturned their sentences in 2014, holding both that the jury instructions in the Carrs’ sentencing were inadequate and they should not have been tried jointly in the same proceeding.

“They are arguing the jury instructions were erroneous because they may have misled the jury into believing it could not consider some evidence in favor of imposing a sentence less than death,” McAllister said of representatives of the Carrs. Kansas Attorney General Derek Schmidt will argue for Kansas on what the Supreme Court has labeled the “mitigation instruction” issue.

The second issue in the cases is whether it was constitutional error to determine the Carr brothers’ sentences in a single proceeding, rather than severing those proceedings so that each brother had his own sentencing proceeding. McAllister will be arguing for Kansas on this question, which the Supreme Court has labeled the “severance question.” He argues that the joint proceeding was consistent with the Eighth Amendment, is part of a longstanding tradition in the United States of joint trials and that jury instructions properly informed the jury to determine each brother’s ultimate sentence on an individual basis.

McAllister, who is also Kansas Solicitor General, will have 20 minutes to make his argument in the Carr cases, and Kansas is supported in its argument by the United States, which frequently conducts joint capital proceedings under federal law.

Two days prior to his appearance regarding capital punishment, McAllister will argue on behalf of the bank at the center of Hawkins v. Community Bank of Raymore. The case is a test of the Equal Credit Opportunity Act, designed to prevent discrimination in lending against women based on gender, marital status and other factors. The plaintiffs in the case originally sued because they claimed female spouses were required to sign guaranties for loans to their husbands’ business. The federal statute, however, allows only the “applicant” for  credit to bring a claim against the bank, and lower courts held that the spousal guarantors are not applicants and thus could not bring a claim, although the business itself that received the loan could do so. McAllister is arguing for the bank and defending the holding of the lower courts. Allowing extra parties, who did not receive the credit, to bring suit would “open Pandora’s box” in terms of banking litigation.

“Bottom line, the statute makes clear that it is only the person who applies for the credit and is denied, or who receives credit on discriminatory terms, who has the claim and should be able to bring suit,” McAllister said.

McAllister said that while two appearances before the court in three days may be unusual, it will provide both unique professional experience and invaluable teaching material he can bring to his classes. Both cases involve issues he teaches and writes about, including federal constitutional law.

The cases are both scheduled for argument the first week of the Supreme Court’s term, and decisions may be issued anywhere from a few months to several months after the arguments, although certainly by the end of June 2016.

Editor’s note: McAllister is in Washington, D.C., this week arguing cases before the Supreme Court and not available for interviews. Elizabeth Cateforis, clinical associate professor of law and supervising attorney in the Paul E. Wilson Project for Innocence and Post-Conviction Remedies in the KU School of Law, is available to speak with media about capital punishment, the Carr brothers and Gleason cases and Kansas death penalty statutes. To schedule an interview with McAllister upon his return or with Cateforis, contact Mike Krings at 785-864-8860 or mkrings@ku.edu.

Professor to argue before Supreme Court on states' rights

Monday, January 12, 2015

LAWRENCE — A University of Kansas law professor will make his second appearance before the U.S. Supreme Court this term, arguing on behalf of Kansas and more than 20 other states in a case focused on natural gas, alleged price fixing and authority between state and federal governments.

Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will argue on behalf of the plaintiffs in ONEOK Inc. v. Learjet Inc. at 9 a.m. CST today, Jan. 12, at the Supreme Court in Washington, D.C. He also argued before the court in October on behalf of Kansas in a case regarding water rights between the state and Nebraska. A ruling in that case is expected soon.

At issue in today's case is natural gas and setting prices for the commodity. The federal government controls the wholesale part of the market, while states can regulate commercial sales, McAllister said. The states are arguing their consumer protection laws prevent federal laws on the transportation and sale of natural gas from setting prices artificially high, or “price fixing.”

“It is an interesting collection of entities represented in the suit,” McAllister said. “There are hospitals, school districts and other private entities such as Learjet. They all have a common interest here and were required to pay way more than they should have for natural gas.”

Kansas Attorney General Derek Schmidt asked McAllister, who is also solicitor general for Kansas, to write the amicus brief on behalf of the plaintiffs. McAllister, who regularly offers legal assistance to the state, will make his seventh total appearance before the Supreme Court. He will dispute the defendants’ and federal government’s position that state antitrust laws are pre-empted by the federal Natural Gas Act. The defendants argue the pre-emption extends to the retail market.

Kansas-based entities Learjet Inc. and Topeka Unified School District No. 501 are among the plaintiffs who claim the defendants illegally drove up the price of natural gas. Similar cases from across the country were consolidated into a multidistrict case in Nevada, and the San Francisco-based 9th Circuit Court of Appeals allowed the plaintiffs to proceed with their claims.

McAllister said he was drawn to the case not only for the chance to serve the state and to appear before the highest court in the land but also for the chance to relate the experience to his students. He teaches classes and conducts research in federal and state constitutional law, civil rights actions and tort law.

“It’s a thrill for me both personally and professionally,” he said. “I think it speaks well for Kansas and the voice of Kansas when cases such as this show up at the Supreme Court. Plus, it always gives me something I can bring back to the students and my scholarship.”

Constitution Day program to address same-sex marriage

Wednesday, October 15, 2014

LAWRENCE — The Dole Institute of Politics at the University of Kansas and KU School of Law will welcome guest speakers Tom Fisher and Roberta Kaplan, and moderator Stephen McAllister, for the 2014 Constitution Day program “Same-sex Marriage – Constitutional Right or the State’s Decision.” This program will explore U.S. Supreme Court cases surrounding the issue of same-sex marriage.

The event will take place at 7:30 p.m. Tuesday, Oct. 21. The event is free and open to the public.

The panelists will discuss the state of constitutional law regarding same-sex marriage, the arguments in favor of and against the recognition of a constitutional right to same-sex marriage, the Supreme Court’s decision not to hear several recent decisions on this issue, and the likely future direction of litigation and the law.

Recent refusal to rule by the Supreme Court on cases in Indiana, Oklahoma, Utah, Virginia and Wisconsin seeking to keep same-sex marriage bans in place has cleared the way for same-sex unions in those states. This development has increased the current number of states allowing same-sex marriage to 19.

“The topic is obviously very timely,” said Barbara Ballard, Dole Institute associate director. “Additionally, the representation of both sides highlights the process of constitutional law that we celebrate with this program each year.”

The annual Dole Institute Constitution Day program features attorneys or practitioners on opposite sides of timely constitutional issues who will discuss specific cases, as well as the constitutional law more generally. Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will moderate this year’s discussion between Fisher and Kaplan.

“I am pleased we will be able to host speakers who have both been involved in the recent litigation at the highest level,” McAllister said.

Thomas Fisher is the solicitor general for Indiana, acting as the chief litigation policy adviser to the attorney general and providing oversight of state and federal litigation. A two-time recipient of the National Association of Attorneys General Best Brief Award for excellence in U.S. Supreme Court brief writing, Fisher has argued three times before the court, most recently in 2008 when he successfully defended Indiana's voter ID law in Crawford v. Marion County Election Board and persuaded the court to permit states to require mentally ill criminal defendants to have trial counsel in Indiana v. Edwards. He has also argued significant Indiana constitutional law cases involving abortion regulations, same-sex marriage, toll road leasing, educational funding and attorney general authority over charitable trusts.

Fisher has taught as an adjunct professor at Indiana University Maurer School of Law and is a frequent speaker at a variety of continuing legal education forums. Prior to joining the Attorney General’s Office, Fisher worked in private practice in Indianapolis and Washington, D.C., and clerked for Judge Michael S. Kanne of the U.S. Court of Appeals for the Seventh Circuit.

Roberta Kaplan is a partner in the litigation department of law firm Paul Weiss, New York office, with extensive experience representing a diverse group of clients on high-profile matters ranging from stock recommendations, mutual funds, credit regulations, data confidentiality and constitutional rights. She has been selected as one of “The 100 Most Influential Lawyers” and one of the top “40 Under 40” lawyers in the United States, as well as a 2013 “Litigator of the Year” by The American Lawyer and 2013 "Lawyer of the Year" by Above the Law. She was ranked as number 5 in this year's "Politico 50." Kaplan has also been profiled in a documentary produced by the PBS MAKERS series.

Kaplan successfully argued before the United States Supreme Court on behalf of her client Edith Windsor in United States v. Windsor, the landmark Supreme Court case. In Windsor, the nation's highest court ruled that a key provision of the Defense of Marriage Act violated the U.S. Constitution by barring legally married same-sex couples from enjoying the wide-ranging benefits of marriage conferred under federal law.

The Dole Institute of Politics is dedicated to promoting public service, civic engagement and politics.  It is located on KU’s west campus and, in addition to the Robert J. Dole Archive & Special Collections, offers free public programming with world-renowned guest speakers on a variety of topics that intersect politics, as well as opportunities for students of all ages. 

For more information on this or any Dole Institute events, visit www.doleinstitute.org or call (785) 864-4900. The Dole Institute of Politics is dedicated to promoting public service, civic engagement and politics. It is located on KU’s west campus next to the Lied Center.

 

Professor with extensive Supreme Court experience to share highlights from career serving KU and Kansas

Wednesday, October 01, 2014
 
LAWRENCE – Kansas Solicitor General Stephen McAllister will share his experiences arguing before the U.S. Supreme Court and other career highlights during his inaugural lecture as the E.S. & Tom Hampton Distinguished Professor of Law at the University of Kansas.

McAllister is set to deliver “The Supreme Court and Kansas: A (Solicitor) General Talk about Studying, Teaching and Serving the Law” at 5:30 p.m. Monday, Oct. 6, at Alderson Auditorium in the Kansas Union. The lecture is free and open to the public.

A Kansas native, McAllister earned degrees from KU and its law school before clerking first for Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and then for Supreme Court Justices Byron R. White and Clarence Thomas. He worked for Gibson, Dunn & Crutcher in Washington, D.C., before returning to KU to join the law faculty in 1993.

McAllister served as dean of the law school from 2000-2005, and he currently teaches constitutional law, civil rights actions, state constitutional law and torts. He has written on a wide variety of constitutional topics, including affirmative action, capital punishment, federalism, freedom of speech, the powers of Congress, sex offender laws and Supreme Court history.

During his years at KU, McAllister has served a number of Kansas Attorneys General and the Kansas Legislature as a legal adviser and litigator, beginning with his work on the sex offender civil commitment case (Kansas v. Hendricks) that went to the Supreme Court in 1996, and continuing through today as he prepares for Oct. 14 arguments at the Supreme Court in the case of Kansas v. Nebraska and Colorado, a dispute over water in the Republican River Basin. In between, he has worked on cases involving a variety of constitutional issues, including the death penalty, the Fifth Amendment privilege against self-incrimination, school finance and freedom of speech.

McAllister’s Supreme Court advocacy has resulted in two Best Brief awards presented by the National Association of Attorneys General. In November 2010, the Supreme Court appointed McAllister to brief and argue in defense of the judgment in a case called Bond v. United States after the United States decided it would not defend the lower court’s ruling. 

McAllister has played a role in bringing several Supreme Court justices to KU and Kansas, and he persuaded two justices to teach in the law school’s summer program in Turkey. In 2013, McAllister and his family spent two weeks with Justice Clarence Thomas and his wife in Innsbruck, Austria, where Thomas and McAllister co-taught a course.

McAllister assumed the Hampton professorship in September 2013. The E.S. & Tom W. Hampton Professorship was established in 1985 by the family, law firm and friends of Salina lawyers E.S. and Tom W. Hampton. E.S. Hampton was a 1929 graduate of the law school and senior partner at Salina firm Burch, Litowich and Royce. His son Tom graduated from KU Law in 1959 and joined his father’s practice. The professorship honors the Hamptons’ legacy and aims to attract and retain quality faculty at KU Law.

Law professor to argue before Supreme Court on water dispute

Tuesday, September 16, 2014

LAWRENCE — A University of Kansas law professor has authored a study and will argue before the Supreme Court on a water rights case via a method that can be thought of as a more civil version of civil war.

Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will argue on behalf of Kansas before the Supreme Court on Oct. 14 in a dispute about water rights and the Republican River. Lower courts have determined that Nebraska has pumped too much water from the river before it flows into Kansas and that Nebraska should pay Kansas $5.5 million. Nebraska claims that amount is too steep, while Kansas claims the payment should be higher. McAllister is arguing at the request of Kansas Attorney General Derek Schmidt, who will join McAllister at counsel table for the oral argument.

McAllister also has written a new article to be published this fall in the law journal The Green Bag about original jurisdiction procedures, the process by which disputes between states often are initiated and decided in the Supreme Court.

“One of the ways to think of original jurisdiction is as ‘the other civil war,’” McAllister said. “Instead of states taking action against each other, militarily or otherwise, they can go to the Supreme Court and get a resolution of their dispute. Original jurisdiction gives the Supreme Court the chance to keep such disputes from ever reaching the point of violence or other punitive actions between states.”

Original jurisdiction was used only sparingly before the Civil War, but since then it has been used frequently to determine all manner of disputes between states over water rights, fishing rights, boundaries and occasionally other issues such as interstate pollution. One of the most famous recent cases was a dispute between New York and New Jersey over which state owned Ellis Island, home to the historic center that processed millions of immigrants to the United States.

This isn’t the first time McAllister has been involved in a water rights case that ended up at the Supreme Court via original jurisdiction. Kansas v. Colorado was a dispute over water rights to the Arkansas River. In that case, Kansas sued Colorado for taking more than Colorado’s share of the water in the river before it reached Kansas. McAllister worked on the case near its conclusion, assisting then-Kansas Attorney General Steve Six, writing briefs and providing consultation. McAllister’s work on that case and the Supreme Court’s decision prompted him to write another article in The Green Bag, agreeing with Chief Justice John Roberts that the Supreme Court alone had the constitutional power to determine the procedures for original jurisdiction cases and that Congress could not and should not get involved in such matters.

Some have argued that Congress has the power to dictate the procedures the Supreme Court uses in these state versus state cases, but McAllister in responding has noted that Congress has never purported to do so directly in the nation’s history.

“History suggests that Congress has never really thought they could or needed to get involved in these cases,” McAllister said. “I don’t see how Congress getting involved could make things any better. The court has developed procedures and provided a forum that has worked for the states.”

While some claim that the Necessary and Proper Clause of the Constitution, which gives Congress the authority to set certain parameters on the court, gives Congress the power to determine original jurisdiction procedures, McAllister disagrees.

“The logical extension of that argument is that Congress could completely control every aspect of the Supreme Court’s original jurisdiction, which would do away with separation of powers. The Supreme Court does not try to control or change the procedures Congress uses.”

In his upcoming arguments before the Supreme Court, McAllister will argue because it has been established that Nebraska pumped too much water from the Republican River and violated a previous compact between the states on water usage, Nebraska should have to pay Kansas significant damages, both to compensate for the loss to Kansas and to deter Nebraska from committing future violations.

“The upstream states always have an advantage, as far as first shot at the water and the ability to use what they want,” McAllister said. “You often end up with disputes arising from interstate water compacts arising decades down the road. I think one of the questions is, ‘How much remedy is appropriate in this situation? It’s an interesting question to argue because there aren’t really hard and fast rules here.”

The case will be both a chance for a KU professor to argue before the Supreme Court and for KU Law students to observe the preparation process firsthand. McAllister will take part in several moot court sessions before the October arguments in order to practice and prepare. In one of those sessions, KU faculty will represent the Supreme Court justices who will hear the case. Students will observe and be able to ask questions following the session.

This particular case will also be part of McAllister’s distinguished professor lecture, which he will present Oct. 6. His Supreme Court experiences, consulting with the Kansas Attorney General’s office and the intersection of the two with service, teaching and scholarship will all be part of the presentation.

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