April 2024 – Prof. Zachary Wolfe, Esq.

The last set of regularly scheduled arguments for the “October 2023 term” will take place April 22-25. Many extremely important and high-profile cases were saved for the end: anti-homelessness ordinances, immigration, union injunctions, abortion, and Trump’s claim of immunity.

Monday, April 22

The first case today concerns the Eighth Amendment and anti-homelessness ordinances. The Supreme Court has held that it is cruel and unusual, in violation of the Eighth Amendment, to punish someone for a “status” over which they have no control. Historically, this struck down laws that made it a crime not merely to use drugs but to be addicted to drugs – but obviously, it is very challenging to distinguish between laws that outlaw a status and laws that outlaw an action that one engages in as an inevitable consequence of that being in that status. In more recent years, the 9th Circuit, in particular, has applied this principle to bar the state from enforcing camping bans and similar anti-homelessness measures when there is inadequate shelter space or other free housing available. As Amy Howe notes in her useful argument preview, the rationale was that ”just as the city could not punish someone for their status – being homeless – it also could not punish them for conduct ‘that is an unavoidable consequence of being homeless.’” Now, in City of Grants Pass v. Johnson, an Oregon city asks the Supreme Court to reject that application of the principle. That city is joined in amici briefs supporting them filed by an extraordinary array of both progressive and conservative cities and half the states in the country.

It should be a fascinating argument. Expect it to run long; the Solicitor General is participating in the argument, which means that there will be a third round of each Justice getting to ask questions of the arguing lawyer after that person’s time has expired.

The Court hears a second argument this morning,

concerning the Federal Arbitration Act, but it is highly procedural and not one I would recommend to the casual observer. Briefly, plaintiffs brought a lawsuit in federal court then recognized that all claims are subject to mandatory arbitration. The court then dismissed the suit “without prejudice” (meaning the plaintiffs can re-file if something changes to create a viable legal theory). The trick is that the FAA instructs the courts to “stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. The Ninth Circuit held that the district court nevertheless had discretion to dismiss the case, rather than stay it, because all parties agreed that all claims were subject to arbitration. The Supreme Court has granted cert. on precisely that (“Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.”).

Tuesday, April 23

Department of State v. Muñoz involves the rights of a U.S. citizen to demand due process for their non-citizen spouse. Muñoz married a citizen of El Salvador and later filed a family-based immigrant visa petition. All was proceeding well for them until the final step, which was for the husband to return to El Salvador for an in-person interview at the US Embassy. The consular officer rejected his visa application, apparently out of suspicion that his tattoos signified gang affiliation. 8 U.S.C. § 1182(a)(3)(A)(ii) is a “catch-all provision” permitting consular officers to reject anyone they believe will participate in “unlawful activity” in the United States. The citizen wife brought suit in federal court, and the Supreme Court has granted cert. on two issues: “(1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.”

It should be interesting arguments. There is an additional interesting overlay in that Congresswoman Judy Chu attempted to intervene but was stymied by State — so also take a look at the amicus brief from Members of Congress on the role of Congress.

The second argument today

is procedural but an important and interesting issue of labor rights. In Starbucks Corp. v. McKinney, workers organized a union at Starbucks and seven of them were fired; their union filed unfair labor practices charges with the National Labor Relations Board. McKinney is a regional director of theNLRB, who petitioned a federal court for an injunction returning the employees to work, pending completion of the Board’s proceedings. The court agreed and granted the requested order.

The National Labor Relations Act specifies that the NLRB may “petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred . . . for appropriate temporary relief.” 29 U.S.C. § 160. Courts have interpreted this to mean that an order should be granted if there is “reasonable cause” to believe the unfair labor practice occurred and the relief requested is “just and proper,” and both the lower court and the Sixth Circuit agreed that standard was met here. But Starbucks argues that the courts should instead apply the typical four-factor test for other forms of preliminary injunctions. Like other Circuits, the Sixth held that the other test is not applicable to the powers of the NLRB specifically authorized by federal statute. The Supreme Court has accepted cert. to resolve which standard should be applied to NLRB-sought injunctions. See an interesting amicus brief by labor and employment law professors.

Wednesday, April 24 – abortion

A specific application of the abortion debate and healthcare access today, in a case that I’m surprised we haven’t heard more about, Moyle v. U.S. Idaho criminalizes nearly all forms of abortion, except those that are “necessary to prevent the death of the pregnant woman,” ectopic pregnancy, or rape or incest in limited circumstances; it does not provide an exception for health of the mother. Federal law, however, requires hospitals that receive federal funds to provide “necessary stabilizing treatment” for any “emergency medical condition.” Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd(b).

After Dobbs, HHS issued a formal guidance document interpreting EMTALA and concluding that federal law preempts state law, such that “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The Idaho law has, since then, been challenged and received different preliminary outcomes in several court proceedings. See the NWLC fact sheet for full details. Arguments and lines are quite predictable, so I won’t say more except to point out an interesting amici brief from “current and former local prosecutors and law enforcement leaders from across the country” arguing that EMTALA should preempt state laws because “these state laws ask prosecutors and law enforcement—like amici—to second-guess emergency room physicians’ judgments about these indeterminate medical matters when initiating investigations, arrests, or prosecutions.”

Thursday, April 25 – Trump immunity

Trump v. U.S. is the case in which “Trump claims absolute immunity from criminal prosecution for all ‘official acts’ undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment” for conspiring to overturn the election. The full D.C. Circuit opinion is really worth your time to review; many observers were surprised the Supreme Court didn’t just deny cert. and let that decision stand. Amy Howe also has a useful summary. Expect extreme lines and lots of activity out front for this one.

There are two more weeks of regularly scheduled arguments in the “October 2023” term. I want to get this post up concerning the upcoming week; another post to come concerning the final cases. That final week will have important and high-profile cases concerning anti-homelessness ordinances, immigration, union injunctions, abortion, … oh, and Trump’s claim of immunity! Details on those cases to be posted by the end of this week.

But first, this week has cases involving public corruption, malicious prosecution, ineffective assistance of counsel in death penalty cases, … oh, and January 6 insurrectionists!

Monday, April 15

First up is a type of public corruption case, in which the question is whether a federal law — that prohibits an official of an organization or governmental entity from accepting “anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more” — prohibits “gratuities” or only pre-arranged quid pro quo bribery. In Snyder v. U.S., Snyder was the Mayor of Portage, Indiana who directed his friend and city official to conduct a bidding process to purchase two garbage trucks. The prosecution argued that the bid description favored a particular company, which ultimately won the contracts. Less than three weeks later, the winning company gave Snyder a $13,000 payment “for his consulting work.” (More details, including his tax problems and other indictments here.) Snyder argued the federal law, 18 U.S.C. § 666(a)(1)(B), applied only to bribes, not gratuities, but the Seventh Circuit noted that the law does not use either term and held that “[t]he statutory language ‘influenced or rewarded’ easily reaches both bribes and gratuities.” The Seventh Circuit has a long set of precedents going back nearly 20 years from that and other Circuits that have similarly held that pre-arranged quid pro quo agreements are not necessary to violate § 666.

The Circuit went on to find that the evidence was sufficient that Snyder “corruptly” construed the bidding process intending to be rewarded later. It gives a useful context and makes for entertaining reading, so a longer quote from the decision:

Mayor Snyder put his good friend Reeder in charge of the bidding process even though Reeder had no experience administering public bids. Reeder then tailored both bid requirements to favor GLPB. In the first-round invitation, Reeder based the chassis specifications on a Peterbilt chassis, and after GLPB told Reeder it could deliver trucks in 150 days, Reeder included a 150-day deadline. In the second round, Reeder tailored the bid specifications to match the truck that had been sitting on GLPB’s lot even though the truck was not the manufacturer’s current model. The second invitation to bid was issued after Mayor Snyder tried unsuccessfully to purchase the GLPB truck outright. Evidence at both trials established that Snyder communicated with the Buhas around the time of the second-round bid.
Less than three weeks after the second contract was awarded to GLPB, the Buhas had GLPB pay Snyder $13,000. When questioned by the FBI, Snyder claimed the $13,000 check was payment for healthcare and information-technology consulting he performed for GLPB. When pressed for specifics, Snyder could not identify any work product he provided GLPB. He said that he went to meetings and “discussed things.” Although Snyder claimed to have advised GLPB on healthcare options after passage of the Affordable Care Act, he could not recall what decision GLPB made regarding its employees’ insurance coverage. The government subpoenaed GLPB and Snyder for all documentation, correspondence, work product, and billing records related to Snyder’s consulting work for GLPB. No such evidence was produced.

Second argument

The second argument today concerns the ability to bring a malicious prosecution claim. Suppose you are charged with multiple crimes, some of which are baseless allegations but others of which have legitimate grounds. If the “charge-specific rule” applies, then you can sue over the baseless charges. If the “any-crime rule” applies, then you cannot sue at all. Interesting questions of state law implications when suing under the federal civil rights statute, and other issues, are nicely described by Cornell Law’s LII post.

Tuesday, April 16 – Jan 6 cases

Like many January 6 insurrectionists, the defendant in Fischer v. US was charged with, among other things, obstructing an official proceeding in violation of 18 U.S.C. § 1512. Although the section is titled “Tampering with a witness, victim, or an informant” and much of it concerns witnesses or evidence, subsection (c) provides for imprisonment for up to 20 years of anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Amy Howe at SCOTUSBlog has a very thorough description of the arguments and legal issues; highly recommended reading. The DC Circuit decision is also quite readable and strong — with a comprehensive and clever call-out to any “textualists” who might be ideologically inclined to favor the insurrectionists (“If a statute’s language is clear, then that language controls.”).

This is the only case scheduled for argument today. Obviously, expect it to run long.

Wednesday, April 17

Thornell v. Jones involves ineffective assistance of counsel in the context of the death penalty. Jones was convicted (Thornell is the director of the Arizona Department of Corrections) of murder. At sentencing, as DPIC explains, his lawyer “did not present evidence in his possession that Mr. Jones had received treatment for mood disorders, attempted suicide five years before the murders, spent time in a mental institution, and suffered multiple neurochemical deficiencies. Mr. Novak did not present any additional family witnesses and the court-appointed expert conducted only a ‘short and cursory evaluation.'” The case has been up-and-back to the Court before. Initially, the district court held that Jones could not show prejudicial error, the Ninth Circuit reversed, and the US Supreme Court summarily reversed and remanded with instructions to reconsider the case in light of the Court’s recent decision in another case (which held that another death penalty petitioner had failed to show prejudice due to the extensive evidence that the prosecution presented). Again, the lower court ruled against Jones and, again, the Ninth Circuit reversed, this time explaining that the lawyer’s “failure to investigate and present evidence of a defendant’s mental defect constitutes deficient performance.” There will be a lot of argument about appropriate standards and criteria for ineffective assistance claims; I recommend reviewing the NACDL brief.

This is the only case scheduled for argument today.

Month: April 2024

Final arguments of the term – April 22-25.