Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant
District of Columbia & State of Maryland v. Donald J. Trump, in His Official Capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.) (filed by Josh Blackman et al.), Dkt. No. 97
33 Pages Posted: 22 Mar 2018 Last revised: 29 Mar 2018
Date Written: March 16, 2018
Scholar Seth Barrett Tillman and Judicial Education Project, Amici Curiae in Support of Defendant, write this FRAP 28(j) letter filing supplemental authority to inform the Court [the Federal District Court of Maryland] of new relevant foreign appellate authority. See Messitte, Citing Foreign Law in U.S. Courts, 35 U. Balt. L. Rev. 171 (2005). On March 14, 2018, the High Court of Australia (“HCA”) issued Re Lambie  HCA 6, 2018 WL 1282055.
The question before the HCA in Lambie involved Australia Constitution Section 44, which functions as a limited incompatibility clause. Section 44’s restrictions extend to “office[s] of profit under the Crown.” The question before the HCA was whether the positions of mayor and councillor of Devonport (Tasmania) were “office[s] of profit under the Crown.” It was agreed by the parties that the positions at issue were positions “of profit.” So, the primary question before the HCA was whether these positions were “under” the Crown. Six of the HCA’s seven Justices joined a majority opinion; the seventh Justice filed a separate concurrence. All seven Justices agreed that as the positions were elected positions, and so not appointed (or removable) by the Crown, these positions were not “under” the Crown. See Lambie –, ; see also Lambie concurrence  & . The primary British and Australian legal authorities (including statutes, cases, and commentary) cited by the Lambie opinions were cited by Amici’s prior briefing in DC & MD v. Trump and in Tillman’s prior academic publications. The holding of the Lambie court (along with the position of the concurrence) is the same position put forward in Amici’s opening brief at Part I[B], at 8–9, and in Amici’s responsive brief at Part II[D], at 27–30.
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