case suggestions – Page 8 – Prof. Zachary Wolfe, Esq.

Undecided cases

June 15, 2015case suggestions

Are you considering attending the announcement of decisions? It is a fun thing to witness–the Justice who authored the majority opinion announces the decision and speaks for a few minutes about the reasoning. Often, a dissenter will speak as well, and sometimes you’ll hear from an author of a concurring opinion.

Now that the Court is no longer hearing oral arguments, all announcements happen on designated “non-argument days”–typically Mondays, but the Court has just added an additional non-argument day for this Thursday, June 18. In recent years, only the most high-profile cases remained for the last one or two such days, so you could be sure to hear something interesting. After this morning’s announcements, however, only three non-argument days remain (unless they add a second day next week, too) before the summer recess is scheduled to begin, yet there are still some 17 cases unresolved. Also, Mary Bonauto was in the courtroom today; I have no clue if she thinks a decision is imminent in her marriage equality case, if she’s just going to attend all remaining announcement days, or if there was some other reason…

It’s impossible to know on which day the decision in any specific case will be announced. But notably, only two cases argued in January remain undecided, and both are significant: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project involves disparate impact claims under the Fair Housing Act and Reed v. Town of Gilbert involves a 1st Amendment challenge to an ordinance that treats some signs differently from others, depending on content and purpose. Note, though, that the fact that these are the oldest undecided cases doesn’t necessarily mean they’ll be decided soon (after all, later-argued cases were announced this morning).

Of course, everyone is eagerly awaiting the decision in Obergefell, which should resolve the Constitutional status of same-sex marriage. That was argued on the second to last day of the argument calendar (April 28), and a significant death penalty case, Glossip v. Gross, was argued last. Again, the timing of the arguments doesn’t necessarily mean these decisions will be announced last. There is also the Affordable Care Act case, King v. Burwell, which was argued back on March 4.

Other unresolved cases that are not receiving as much attention but are quite significant include:

Arizona State Legislature v. Arizona Independent Redistricting Commission — asking whether states may appoint non-elected bodies to draw congressional districts, despite the phrase “by the legislature” in the Constitution’s elections clause (Art. I, § 4).
Ohio v. Clark — involving confrontation of witnesses in child abuse cases;
Walker v. Texas Division, Sons of Confederate Veterans — involving the confederate flag on state license plates;
National Mining Association v. EPA and Utility Regulatory Group v. EPA — both challenging EPA regulations of electric utilities; and
Brumfield v. Cain — involving mentally disabled defendants.

So by my estimation, 11 of the 17 remaining cases should be especially interesting ones to hear announced in person. That’s pretty decent odds, if you’re thinking about attending. Announcement days are also much easier to witness in person—no lining up overnight, as people did for the arguments. I’d recommend getting there by 8:00 for the public line. If you can’t make it to the Court, scotusblog has been “live blogging” the announcements. (No computers are allowed in the courtroom, but scotusblog sets up in the cafeteria just downstairs and gets the written decision as soon as the Justice begins speaking and, I think, reports from runners from the press section. Logging in is of course not as fun as being there, but is the fastest way to get the info and it can have the feel of an event.)

Final Arguments of the Term

April 9, 2015case suggestions

The last two weeks in April will close oral arguments for the term. Along with the highly anticipated marriage equality cases, the Court will hear important criminal law cases, including the first death penalty case since 2007.

Several days in the closing weeks have only one case scheduled.

Monday, April 20

The Armed Career Criminal Act provides for stricter punishment for certain offenses, and the Court in Johnson v US will decide whether possession of a short-barreled shotgun constitutes a “violent felony” within the meaning of that Act.

Tuesday, April 21

In McFadden v US, the Court wades into the confusing area of regulating “designer drugs” developed by “underground chemists” — new substances that are not listed illegal drugs but produce the same effects, which Congress intended to regulate with the Controlled Substance Analogue Enforcement Act. This case raises the issue of whether the government must prove that the defendant knew the drug he had was an analogue to a listed drug.

Wednesday, April 22

Another one-case day, this time involving the takings clause, which is relatively rarely addressed by the Court, although this specific dispute was before the Court last year on a preliminary standing issue. It involves a Department of Agriculture program to stabilize raisin prices, which requires producers to surrender some of their supplies each year and be compensated when and if the government sells those raisins. The Court must decide whether this raises a Fifth Amendment issue (“taking” raisins rather than real property), and if so, whether the just compensation requirement can be satisfied with this sort of system.

Monday, April 27

Kingsley v. Hendrickson is an excessive force claim against jail officials. The jury was instructed that for the prisoner to win, he would have to prove, among other things, that “Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety.” The Court has accepted cert on the limited question of whether it should instead be enough to show that the officials “deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

Tuesday, April 28 – marriage equality cases

In contrast to the one-case days, the Court has accepted cert. in four cases that raise questions related to marriage equality. The cases are all consolidated for argument together, with a total of 2 1/2 hours allotted (but I wouldn’t be surprised if it runs a little long).

Unlike the procedural, technical, and somewhat peripheral issues that kept us from true resolution of the overall issue last time, the Court this year has accepted cert. on questions that cut to the core:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of- state?

A total of ninety minutes is allotted for oral argument on question 1. A total of one hour is allotted for oral argument on question 2.

Much has been written about these cases (Scotusblog has a set of links to recent stories here) so I won’t duplicate efforts. Suffice to say it will be a fascinating and historic day–get to the Court if you can, whether to try to make it in (which likely will require at least one overnight stay for the public line) or just to take in the demonstrations and press conferences out front.

Wednesday, April 29

Although the marriage cases are getting the bulk of public attention, an extremely important death penalty case is up for argument today, Glossip v. Gross. The first question presented speaks for itself:

(1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious;

In addition to considering the constitutionality of this sort of lethal injection cocktail, the Court has also accepted cert. on two further questions, involving the technical requirements for blocking executions that may violate constitutional requirements:

(2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

No further arguments this term, but decisions will be announced on Mondays

The Court will continue to sit and announce decisions on Mondays through the end of June, or until it has announced decisions in all cases argued this term. It may announce sittings on other days, as decisions get finalized. These sessions, too, are open to the public. We don’t know which cases will be issue on which days, but in recent years, the Court has announced its most high-profile cases in the last few seatings (which seems likely to recur, given the arguments being heard in the final week). Even then, the lines were relatively short and it is very interesting to hear the Justices announce and summarize the decisions (and sometimes even more interesting when there’s a spirited dissent!).

Barring unusual circumstances requiring an expedited hearing, the Court will then go on recess and not hear any more arguments until the first Monday in October.

First Week of March

February 25, 2015case suggestions

Interesting cases next week involving efforts to combat gerrymandering, hearsay in a child abuse case, privacy of hotel guest registries, race discrimination in jury selection, and, again, the Affordable Care Act.

Monday, March 2

A really interesting case—a situation and legal question never before addressed—involving efforts to combat gerrymandering is up first today. Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. From a pool of 25 people selected by a judicial appointment body, the majority and minority leaders of both houses of the legislature each select one person, then the four of them select the fifth and final member, who cannot be registered with either major party and will serve as chair. Feeling left out, the legislature brought Arizona State Legislature v. Arizona Independent Redistricting Commission.
. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.

The second case involves hearsay and the confrontation clause (related but distinct concepts) in the context of a child abuse case. The trial court in Ohio v. Clark permitted testimony from a school teacher that when she asked a male student about marks on his face, he identified the defendant. The three-year-old was found to be too immature to be competent to testify, so the jury could not hear from him directly and the defense could not explore what he meant or whether there were other reasons he might have said this.
. The Constitution provides that defendants have a right to confront “the witnesses against him,” and it should not be easy to render cross-examination ineffective by just keeping the “real” witness off the stand in favor or someone who would just repeat their claims, but nevertheless the Court has historically made some provision for hearsay in instances that don’t raise such concerns (most dramatically, a murder victim’s identification of his killer immediately before dying). Hearsay is an out-of-court statement “offered for its truth” (i.e., a fact that is relevant to guilt or innocence) and the most recent Supreme Court cases on the confrontation clause require excluding hearsay that is “testimonial.” Exactly what “testimonial” means is the issue in this case, but presumably it has something to do with whether the statement is primarily designed to be used in a trial. So was the statement to the teacher part of building a case against the defendant, or was it just a conversation about the child’s well-being? And from whose perspective?

Tuesday, March 3

Two 4th Amendment rights issues are on deck in Los Angeles v Patel. The Court has generally held that overnight guests in a hotel have an expectation of privacy and a warrant is required, although a variety of 4th Amendment issues are more complicated in the hotel setting (if someone overstays, registered under a false name, etc.) and at issue here is a city ordinance (one of about 70 similar laws in the country) that allows the police to inspect hotel guest registries without a warrant or permission from the hotel owner or guests.
. Beyond the question of whether that requires a warrant, this case was brought by people not facing a prosecution but still concerned with privacy of their hotel records, which raises a question of whether there is standing to bring a “facial challenge” to this sort of city ordinance. The usual way to remedy a 4th Amendment violation is to suppress the evidence that was unconstitutionally obtained, but this has been widely criticized from two perspectives: suppression of evidence protects only people who are being charged with a crime, and correspondingly, innocent people who were wrongfully searched have nothing to suppress and thus no remedy. Nevertheless, without an actual search being challenged, courts are reluctant to grant standing and decide the issue on a somewhat theoretical basis.

The death penalty, AEDPA, and Batson (race discrimination in jury selection) are all implicated in today’s second case, Davis v. Ayala. The prosecutor used his challenges to exclude every potential juror who was Black or Latina/o. This triggered a Batson hearing, but the judge heard the prosecution’s excuses without defense counsel present and upheld the removal of the jurors without giving the defense an opportunity to respond to the prosecution’s preferred justification. This, almost everyone agrees, was error. But the California Supreme Court held that it was “harmless error” and so did not reverse the conviction and order a new trial. It found that the defense would have lost the Batson challenge even if counsel had been in the room, and excluding the defense was not the sort of “structural” error that so infects the proceedings as to require reversal.
. The defense then brought the matter to federal court, but runs up against the Antiterrorism and Effective Death Penalty Act (AEDPA), which allows federal courts to reverse state court findings only under very limited circumstances. These are notoriously confusing standards… Most essential for this case is the question of whether the state court ruled on federal questions “on the merits” (which would then be entitled to deference by the federal courts): the defense claim here is that either the state court relied on state constitutional grounds (and thus there is no adjudication on the merits as to federal questions to defer to) or alternatively, that even due deference to the state court ruling requires a different conclusion as to “harmlessness.” The 9th Circuit agreed with this reasoning and ordered a new trial, but the 9th Circuit in general and some of the judges on this panel in particular are frequently reversed when the Court accepts cert….
. This will be a difficult argument to follow. It also will be important and quite interesting if you can keep up, so take some time to read and digest this article if you plan to attend. [Also note that one of the party names has changed repeatedly. Ayala is advancing the case against the warden holding him, and different people have held that job. So if you’re researching the case, you may see Chappell or Wong instead of Davis; and who is on which side of the v. changes depending on who lost below and therefore brought the case to that court.]

Wednesday, March 4

Affordable Care Act. Yes, again…. Its constitutionality is established, but there’s a question about whether the specific language in the law allows for tax subsidies for people who get their insurance through the federal exchange instead of through their state. Useful details in this article. This case, King v. Burwell, is the only one being argued this morning; there don’t seem to be special orders about time allotments, but expect the case to run at least a little longer than the usual hour.

February Cases

February 3, 2015case suggestions

In the last week of February, the Court will hear cases involving religious accommodation obligations (in the context of Abercrombie’s “look policy”) if the applicant never mentions religion, the reviewability of visa denials, the Prison Litigation Reform Act, and sales of firearms after being convicted of a felony.

One note, too, about a much-anticipated case that had been scheduled for March: The Court this term will not be deciding whether the 2012 decision that it is cruel and unusual to sentence juveniles to life without parole is retroactive to prisoners who were sentenced before that decision was announced. The case raising that issue has been rendered moot by a plea deal.

Monday, February 23

Kerry v. Din is an interesting challenge to immigration policy and secrecy. Under the doctrine of “consular nonreviewability,” people seeking to immigrate to or visit the US are not entitled to judicial review if their applications are denied. But in this case, it is the US citizen, who is the wife of the person seeking a visa, who is suing and claiming a constitutional right to know why the government is keeping her husband from entering the US. The embassy cited a provision that denies visas for “terrorist activities” but offered no further explanation. The husband worked for the Afghan government under the Taliban as a payroll clerk in the ministry of social welfare, but after the US invasion, he continued to work for the Afghan government, now in the ministry of education (and anyway, the US government funded the Taliban as late as 2001). The Court will have to decide if the citizen-spouse is entitled to demand and explanation for the denial of a visa for her husband, and then whether there is a legitimate reason for the denial.

Coleman-Bey v. Tollefson involves prisoner access to the courts under the Prison Litigation Reform Act. Prisoners may file lawsuits without paying fees (in forma pauperis) but the PLRA denies ifp if the prisoner has had three earlier lawsuits dismissed. The issue in this case is whether a dismissal that is pending appeal counts as a “strike” under the PLRA.

Tuesday, February 24

Henderson v. US involves a Border Patrol agent who was charged with narcotics offenses, turned over 19 guns to the FBI as a condition of his pre-trial release, and then pled guilty. The felony guilty plea makes him ineligible to possess firearms, but he wants the FBI to return them, either to him or to a buyer. The Court granted cert. on the question, “Does a felony conviction, which makes it illegal for the felon to possess firearms, also prevent a court from ordering that the government transfer non-contraband firearms to a third party to whom the defendant has sold his property interests or sell the firearms for the defendant’s benefit?”

Today’s second case (Tibble v. Edison International) involves complex procedural questions and the duties of investment fund managers under ERISA. Not really one for the casual observer…

Wednesday, February 24

Much has been said about Abercrombie’s “Look Policy,” which dictates hiring decisions. In this case, a woman wore a headscarf to the interview. The interviewer never mentioned it, so the reasons for wearing the headscarf were never stated, and the interviewer gave her relatively high marks on the evaluation and recommended hiring. Upon hearing about what she wore, however, the district manager directed the “appearance” score to be lowered, making the applicant ineligible for employment. Abercrombie claims that the applicant is not entitled to religious accommodation and Abercrombie was not unlawfully discriminating because the applicant never mentioned that she was dressed in that way for religious reasons. The question before the Court in EEOC v. Abercrombie & Fitch is whether unlawful discrimination requires “direct knowledge that a religious accommodation was required.”

Today’s second case involves payment of attorney fees in bankruptcy cases; the casual observer will likely want to leave after the Abercrombie case….

January Cases

January 6, 2015case suggestions

January oral arguments include two First Amendment cases (determining whether a regulation is “content-based” and the constitutionality of restrictions on judges soliciting campaign contributions), two discrimination cases (the powers of the EEOC and whether disparate impact claims may be brought under the Fair Housing Act), government fraud, and whether police may extend a lawful traffic stop while they investigate a hunch for which they have no probable cause.

Monday, January 12

An important First Amendment question is presented in Reed v. Town of Gilbert, involving the line between content-based and content-neutral legislation. Many municipalities try to regulate signs posted in public view, apparently out of concern that outdated signs could clutter the community. Gilbert, Arizona, distinguishes among signs for specific events (which can only be posted for 12 hours before through 1 hour after the event), electoral campaign signs (which can be posted up to 60 days before and until 15 days after the election on which the candidate or ballot measure appears), and ideological signs (which can be left up indefinitely). The regulation is being challenged by the Good News Community Church, which wanted to advertise the hours and location of its services. The City did not fine them, but warned them that their signs were in violation because they were posted outside the window for signs involving specific events.
Doctrinally, since there is no indication that the church was being treated differently based on the religious content, the primary issue is whether this is a content-based restriction. As a general rule, government may not treat some speech differently than others because of the content of what is being communicated. This relates to but is broader than viewpoint discrimination, at least according to many advocates, because the goal is to prevent government from creating a hierarchy of speech. Nevertheless, the courts below upheld the legislation because there was no indication that it was designed to suppress discussion of any ideas or viewpoints. The Supreme Court will have to decide if the usual prohibition on content discrimination applies when government wants to make this sort of distinction among types of signs.

The second argument today is a more technical issue of regulation of the natural gas market. Nevertheless, if you’re attending the First Amendment case, you might consider staying for the second argument, so take a look at the Solicitor General’s brief to get a sense of the issues.

Tuesday, January 13

Kellogg Brown & Root Services v. U.S. ex rel. Carter is a little arcane, but may be of interest to some of you. The False Claims Act allows a private individual to file a lawsuit on behalf of the government if the U.S. has been defrauded; if successful, the “relator” (that’s the rel. in “U.S. ex rel. ___” in the case caption) gets to keep a portion of the funds. To get this benefit, you have to be the “first to file,” but in this case, another lawsuit had already been filed but was then dismissed on technical grounds. So the first question in this case is whether an individual can stand as the relator even if they weren’t “first,” if there nevertheless is no other pending lawsuit. Beyond that, the case was filed after the statute of limitations ran, but the Wartime Suspension of Limitations Act sets aside the statute of limitations for claims of fraud against the government when the U.S. “is at war.” So are we “at war” despite the lack of a declaration of war, and does that Act apply to private plaintiffs who are acting as relator in government fraud cases?

The Equal Employment Opportunity Commission (EEOC) investigates claims of unlawful discrimination. If it finds a violation, it is required to enter into mediation with the company before filing a lawsuit, but it apparently has complete discretion to accept or reject settlement, with no guidance or standards specified in the laws empowering the EEOC. Here, the company (which was accused of sex discrimination) argued that the filing of a federal lawsuit was improper because the earlier conciliation efforts were not pursued “in good faith” by the Commission. The trial court agreed, but the Circuit held that in the absence of legislative standards for what the Commission must do during conciliation, it would be improper for the courts to question the agency’s assertion that it had mediated in good faith. The case is Mach Mining v. EEOC.

[Cases on Wednesday are not recommended for the casual observer. The Court is closed on Monday the 19th in observance of Martin Luther King Day.]

Tuesday, January 20

The first case this morning, Armstrong v. Exceptional Child Center, Inc., involves the enforceability of the Medicare provision requiring providers to be reimbursed at rates that “bear reasonable relationship” to the costs. The provider documents cost increases, but the state refused to raise the reimbursement rate because of budget concerns. The law does not specify that the provider can sue over this, but the Ninth Circuit found an implied “private right of action,” which is a doctrine that the Court generally has been limiting in recent years. Arguments will be somewhat technical, but it’s an important issue. Read the summary here and follow the link for more.

An interesting case involving the First Amendment and judicial conduct is the second case to be argued today. Although federal judges are appointed for life, judges at all levels in many states must run for office in a general election; in fact, the great majority of states require at least some of their judges to be elected. To try to maintain judicial independence, a number of states have enacted laws or state bar rules of professional conduct that permit campaign committees for judges but prohibit the judge from personally soliciting contributions. But that is, of course, a direct restriction on speech. The case, Williams-Yulee v. Florida Bar, also will have implications for campaign finance laws beyond judicial elections.

Wednesday, January 21

It looks like the Supreme Court will at last decide whether or not “disparate impact” claims may be brought under the Fair Housing Act. The court had accepted two cases involving this issue earlier, back in 2011 and again earlier this term, but both settled before oral arguments. The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.” Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.” But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic? Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
This case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, involves the allocation of tax credits and the impact on housing voucher programs. Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers. The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers. This frustrated the community group that works for racial and socioeconomic integration, which filed suit alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods. Follow the link for a more thorough discussion of the case and importance of the disparate impact doctrine.

Today’s second case, Rodriguez v. US, involves dog-sniff searches after a traffic stop. The commands of the 4th Amendment mean that warrantless searches and seizures are suspect, but the Court has found that it is not unconstitutionally “unreasonable” for police to stop drivers without a warrant if they have probable cause that a crime is being committed. The question is whether police can continue to “seize” a driver after the officer has finished the stop that had probable cause (e.g., has or should have finished writing the speeding ticket) in order to do something like wait for a canine to arrive and search for drugs based on a “hunch” (not arising to probable cause). The Court has held that searches and questioning that prolong the driver’s time being held beyond what is needed for the crime that justified the stop initially are permissible, even without further probable cause, if the further invasion of liberty is “de minimis.” The result has been lower courts struggling to figure out how many minutes is de minimis and how many is too long to require a driver to wait while the officer seeks to satisfy a hunch. The Court is loathe to set arbitrary lines like number of minutes, so it will be interesting to see how it deals with the apparent need for a clear line; it has accepted cert. on the question of whether there even should be a “de minimis” exception to the probable cause requirement.

November Cases of Note

October 26, 2014case suggestions

November brings cases involving state secrets and whistleblowers, voting rights protections against racial gerrymandering, presidential powers in the context of Israel/Palestine, securities fraud, and rights of mortgage borrowers.

Monday, November 3

November arguments begin with a case that will be viewed as an Israel-Palestine issue, although the legal question is one of separation of powers. Long-standing State Department policy is that when a US Citizen is born in a disputed territory, the consular report of birth abroad and the passport should list the city or area only (without choosing a country). The plaintiffs’ child was born in Jerusalem in 2002, and the consulate, citing this policy, refused their request to add “, Israel” after the city name. This case (Zivotofsky v. Kerry) challenges the constitutionality and enforceability of a Congressional enactment directing State to comply with such a parental request. Traditionally, most everything that implicated international diplomacy, including recognition of states in disputed territories, has been within the scope of Presidential powers. It is an open question whether Congress can direct an executive branch agency like State to go against the President’s determination of foreign policy. In signing the bill into law in 2002, President Bush stated that this provision would not be interpreted as mandatory because otherwise it would “interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” The Obama Administration has taken the same position.

The second case this morning involves allegations of securities fraud. Purchasers of stock may sue if the SEC registration “contained an untrue statement of material fact or omitted to state a material fact [causing the statement to be] misleading.” (Securities Act § 11, 15 U.S.C. § 77k.) The investors, a union pension fund, allege that the company was engaged in illegal activities, including a kickback scheme and defrauding Medicare, which it failed to disclose in SEC filings. The company would later settle with DoJ for $124 million. At issue in this case, Omnicare, Inc. v. Laborers Dist. Council Construction Indus. Pension Fund, is the level of intent that must be alleged to make out a claim under this provision of the Securities Act: Must the investor show intentional misrepresentation and that the filer held a subjective intent to mislead, or only that, objectively, material facts were omitted that made the filing misleading. The Sixth Circuit held that an objectively wrong statement is actionable, while the Second, Third, and Ninth Circuits have required a subjective element, that the filer’s true understanding was different from what was represented on the filing.

Tuesday, November 4

Department of Homeland Security v. MacLean, filed by a former TSA worker, raises the issue of state secrets and whistleblower protection. His publication of the TSA plan to cut back on air marshals led to public outcry, Congressional investigation, and eventual abandonment of the plan, but he was fired nonetheless. By statute, whistleblower protection does not apply if the information made public was “specifically protected by law from exposure,” but the plaintiff argues that this provision is intended to cover highly classified information under Congressionally enacted law, not a staffing plan that is made private only by TSA-issued regulation. The unusual twist is that this is a law enforcement official, disclosing information in order to obtain greater levels of security, but of course the ruling will have implications for whistleblowers seeking to curtain the scope of “national security” measures.

The second case involves procedural issues regarding the right to rescind a home loan. Under the Truth in Lending Act, a borrower has the right to rescind the mortgage up to three days after closing or after all receiving all legally required loan documents, but this right expires three years after closing (regardless of whether or not all documents have been provided). In Jesinoski v. Countrywide Home Loans, the borrowers claim they were never provided all the required paperwork and they sent a letter to the bank attempting to rescind their mortgage within the three year timeframe, but they did not file a lawsuit until after that timeframe. The Court must decide if the three year limit is akin to a statute of limitations (requiring filing of a lawsuit) or rather is governed by the related, three-day statutory procedures for rescinding the loan (which is to send a letter to the bank).

Wednesday, November 5

Just a quick note on today’s criminal law cases. Yates v. U.S. involves a commercial fisherman who is alleged to have caught undersized fish and then destroyed them before he could be prosecuted for that crime, so he is instead charged with impeding or obstructing an investigation. The statutory language is directed to anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation; the Court must decide if this covers only business records and the like or “tangible objects” like fish, which there is no independent requirement to retain. Johnson v. U.S. involves interpretation of the Armed Career Criminal Act, and asks whether possession of a short-barreled shotgun constitutes a “violent felony” for purposes of that sentencing scheme.

[Nov. 10th’s cases are important but focused on procedural issues. The Court is closed on Nov. 11 for Veterans Day.]

Wednesday, November 12

This racial gerrymandering case comes with the interesting twist that the state accused of race discrimination had been arguing that Section 5 of the Voting Rights Act prohibited them from drawing districts any differently–but last term the Court, to the dismay of voting rights advocates, rendered that provision inoperable. The two cases, Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama, are consolidated for argument in the first hour of the day but raise extremely important issues, especially after the decision in Shelby County last year and the denial of cert. in the Texas Voter ID case in October. The cases are receiving a great deal of attention, especially from voting rights advocates. Scotusblog has a useful write-up, and the Lawyers Committee for Civil Rights Under Law has urged the Court not to reach the substantive issues at this time due to serious shortcomings in the factual record.

The Court will also hear a tax law case, questioning whether a state may tax all of its residents’ income, even if earned in another state. Maryland State Comptroller v. Wynne

Anticipated Cases

September 29, 2014case suggestions

My plan is to offer a post every month or so with all the cases coming up that should be relatively interesting and accessible, or in other words, everything except the highly technical and relatively boring procedural issues. But I thought I would also direct your attention to a few particularly significant cases that are coming up this term.

Two important cases are coming up in the first week, regarding religious liberty in prison and unconstitutional stops.Religious liberty cases are always significant, and especially so given last term’s Hobby Lobby ruling, the full scope of which is still being worked out and should be clarified by the decision in this case. The Court also has been on a bit of a trend in restricting warrantless searches (see 2012’s GPS monitoring case and 2014’s case involving looking through an arrestee’s cell phone). In addition, it should be interesting to see how Justice Scalia responds to this case; he is often quite protective of traditional 4th Amendment rights, contrary to what some people might expect of him.

I already wrote about the above cases. I’ll say more about each of the following cases in the weeks before arguments, but as a preview:

The next high-profile case will be viewed as an Israel-Palestine issue, although the legal question is one of separation of powers. Long-standing State Department policy is that when a US Citizen is born in a disputed territory, the consular report of birth abroad and passport should list the city or area only (without choosing a country). The plaintiffs’ child was born in Jerusalem in 2002, and the consulate, citing this policy, refused their request to add “, Israel” after the city name. This gets legally complicated because Congress has enacted a law that directs State to comply with such a parental request. Traditionally, recognition of states, especially in disputed territories, and all manner of international relations has been within the scope of Presidential powers. It is an open question whether Congress can direct an executive branch agency like State to go against the President’s determination of foreign policy. In signing the bill into law, President Bush stated that this provision would not be interpreted as mandatory because otherwise it would “interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” The Obama Administration has taken the same position. This case will be argued November 3.

The issue of state secrets and whistleblower protection is raised in an interesting lawsuit by a former TSA worker. His publication of the TSA plan to cut back on air marshals led to public outcry, Congressional investigation, and eventual abandonment of the plan, but he was fired nonetheless. Whistleblower protection does not apply if the information made public was “specifically protected by law from exposure,” but the plaintiff argues that this is intended to cover highly classified information under Congressionally enacted law, not a staffing plan that is made private only by TSA-issued regulation. The unusual twist is that this is a law enforcement official, disclosing information in order to obtain greater levels of security, but of course the ruling will have implications for whistleblowers seeking to curtain the scope of “national security” measures. This case will be argued November 4.

The racial gerrymandering case to be argued on November 12 comes with the interesting twist that the state accused of race discrimination had been arguing that Section 5 of the Voting Rights Act prohibited them from drawing districts any differently–but last term the Court, to the dismay of voting rights advocates, rendered that provision inoperable.

An important case involving the Pregnancy Discrimination Act, to be argued December 3, really shouldn’t be a tough call…

These are the cases that I find particularly compelling and that, as of this posting, have been scheduled for argument. The Court has granted cert. in but not yet scheduled arguments for a few other cases, and it is still considering whether or not to grant other petitions for cert. No arguments beyond December 10 have been scheduled yet, but the Court will presumably hear cases through April, as usual. Many commentators anticipate an abortion case, revisiting birth control coverage, and perhaps even a marriage discrimination case, but we’ll have to wait and see.

First Week of the New SCOTUS Term

September 20, 2014case suggestionsLeave a Comment

“First Monday” — October 6

Warrantless Stops & Searches

The first case of the 2014-15 term involves an illegal stop of a car, which ultimately resulted in the discovery of more than 50 grams of cocaine. The officer pulled the car over, which is a form of seizure governed by the 4th Amendment and requiring “reasonable suspicion.” The officer asserted suspicion that a law was being violated because the car had a broken taillight — but North Carolina law required only one working taillight, so there was no basis for believing a law was being violated. The Court must decide if a police officer’s ignorance of the law is an excuse for what would otherwise be an unconstitutional search. Heien v. North Carolina,

The second case on this opening day is more obscure, involving filing deadlines and civil procedure in class actions. Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc.

Tuesday, October 7

Religious Freedom & Prisoners

Grooming requirements come up frequently in discrimination cases, and this morning the issue is considered in the prison context, in Holt v. Hobbs. A prisoner asserts that maintaining a beard is essential to his religious beliefs, which are protected by both the Constitution and federal statute, which requires the Court to determine whether the regulation places a substantial burden on religious practices and, if so, whether the regulation is the least restrictive means available to achieving a compelling goal — the same standard applied in last term’s highly controversial Hobby Lobby ruling, as this interesting NY Times article notes.

The second case, again, is a more obscure question of civil procedure. Dart Cherokee Basin Operating Company, LLC v. Owens

Wednesday, October 8

Working Hours

This group of warehouse workers were required to pass through a screening before they could leave for the day (to prevent theft), but the stations were under-staffed, resulting in waits of up to 25 minutes when a large shift ended. The employer said this was after their shift ended, so did not pay them for this time. The resulting lawsuit is brought under the Portal-to-Portal Act, which has seen a lot of cases involving protective gear and jobs that involve travel between sites. An interesting discussion of this case (Integrity Staffing Solutions, Inc. v. Busk) and various precedents is available here.

Juror Misconduct

A Federal Rule of Evidence is designed to protect juror statements and keep them out of future litigation, unless they are used to demonstrate “improper outside influence” against the decision-making of a juror. Here, the court determined that they fact that a juror raised personal experience was not improper influence, but the plaintiff also asserted that the trial is tainted because the juror lied during jury selection; had the juror disclosed this life experience, she probably would have been dismissed from the jury). The Rule does not explicitly provide an exception to the general rule that jury statements are inadmissable where the statement is meant to prove lying; the Court will have to decide if an exception should be read into the Rule. Warger v. Shauers.