February cases

This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.

Tuesday, Feb 21

A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent.  The agent fired from US territory, but the boy was in Mexico.  That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial:  does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this?  A through description of all the legal issues is available here.

McLane Co v. EEOC is a more procedural issue without much suspense.  Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC.  All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.

Wednesday, Feb 22

The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently.  Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements.  Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents.  The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.

Monday, February 27

The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.

The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

January Cases

This week, the Court considers a free speech challenge to credit card surcharges, litigation sanctions, and what standards for a free appropriate public education for students with disabilities.  Next week, the Court takes on both disparaging trademarks and the rights of detainees who claim they were held in severe conditions of confinement based only on racial profiling.

Tuesday, January 10

An interesting case this morning involves claims of free speech rights in an unusual context:  credit card fees.  Merchants pay a fee to credit card companies, but ten states prohibit them from passing on that fee as a “surcharge.”  The group of merchants in Expressions Hair Design v Schneiderman argue that this prohibition is an unconstitutional limitation on speech.  The Second Circuit rejected that, holding that it only regulates commercial practices (conduct, not speech), but the merchants note that the law allows them to offer a discount for paying with cash, so as a practical matter, it regulates what they call it rather than what they charge.

The second case, Goodyear Tire & Rubber Co. v. Haeger, involves the scope of a court’s inherent power to award attorney fees and other sanctions where a party engages in some form of litigation misconduct.

Wednesday, January 11

The Individuals with Disabilities Education Act (IDEA) requires states to provide children with disabilities with a “free appropriate public education” (FAPE), but that is not fully defined.  Some courts, including the lower courts in this case (Endrew F. v. Douglas County School District), have held that it requires only that the state provide some sort of education that is of more than minimal value to the student.  Other courts, and the Obama Administration in this case, have argued that this is not enough, and the standard should involve a “meaningful” education.

[This is the only case being argued today, and is scheduled for one hour.  However, the Solicitor General is arguing along with the parties, so it may run a few minutes long.]

Wednesday, January 18

Two significant and contentious issues are before the Court today.

First, the Court considers the provision in the Trademark Act that allows for refusal to register the trademark if it would “disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. 1052(a). The specific case (Lee v. Tam) involves Samuel Tam, who named his band The Slants in order to bring attention to discrimination against Asians, “following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride.”  This case will have implications for the current name of the Washington football team, among other contentious current issues.

Next, the court considers detainee rights in Ziglar v. Abbasi and Hasty v. Abbasi, which allege that, in the aftermath of the 9/11 attacks, individuals were arrested and detained in extreme conditions on the basis of no evidence other than race, religion, and national origin.  The Atlantic offers an overview and makes predictions of the sort of reception the cases are likely to receive.  The Center for Constitutional Rights has detailed information about their case.  [The parties had requested additional time for argument, but that was denied and the cases are considered with one hour total.  I would expect it to run a little long nonetheless.]

 

December 5 – Voting Rights Act

The Supreme Court and state legislators have been struggling with voting districts as they relate one-person-one-vote principles and racial discrimination in multiple cases over the past several years, and the issues arise again in the two cases scheduled for Monday, December 5.

Amy Howe has an excellent article on Scotusblog that provides a full description of the context and these cases.  Briefly, Bethune-Hill v. Virginia State Board of Elections challenges twelve “majority-minority” districts in Virginia, with one side arguing that African Americans were packed into these districts in order to dilute their voting power in other districts and the other side claiming that the case was filed in order to require re-drawing of the maps after Democrats won the governorship.  The second case, McCrory v. Harris, is a challenge to North Carolina’s infamous NC-1 and NC-12 districts, which look like this:

congressmap01

(via http://www.newsobserver.com/news/politics-government/state-politics/article58756583.html)

Inaugural Parade Protests (DC Cir)

The D.C. Circuit Court of Appeals will hear arguments on Monday (Nov. 14) in a case involving the rights of protesters to line the Inaugural Parade Route on January 20, 2017.  The Partnership for Civil Justice went to court back in 2000 and successfully secured access for protesters on Inauguration Day 2001, but according to this release:

In an unprecedented court filing, the U.S. Government and its Justice Department argue that the government may take the public parklands, sidewalks and streets of America at the central moment of their use by the people for assembly, speech and debate, and petitioning of the government and redesignate our public spaces into exclusive “government speech” or No Free Speech Zones. There is no limitation to the scope of these zones.

Circuit arguments are open to the public and typically do not draw much of a crowd, although it would be wise to get there a bit early for Monday’s.

Monday, November 14 – 9:30 a.m.
US Court of Appeals for the DC Circuit
333 Constitution Avenue
Courtroom 31

October cases

First Monday is October 3 and opens the 2016-17 session of the Court, but this year Monday is a “non-argument day.”  In the first two weeks, the Court will hear cases concerning racism and the death penalty, an allegation of extreme police and prosecutorial misconduct, and racist jurors who do not reveal their racism until after the jury has been selected and started private deliberations.

Tuesday, October 4

Two relatively technical cases are scheduled for this first argument day.  Neither will be particularly accessible to a casual observer, but may be of interest to some.

Bravo-Fernandez v. US involves the “double jeopardy clause” and the doctrine of “collateral estoppel.”  The first trial resulted in jury acquittal on some counts and conviction on other counts, but the conviction was later overturned due to erroneous instructions to the jurors.  The government wants to reprosecute the overturned convictions, but the defendant says those counts, properly understood and with correct jury instructions, are logically inconsistent with the finding of acquittal on the other counts in the first trial. SCOTUSblog offers a useful overview.

Shaw v. US asks whether a bank fraud statute criminalizing a “scheme to defraud a financial institution” requires proof of “a specific intent not only to deceive, but also to cheat, a bank.”  The scheme is at least an interesting read.

Wednesday, October 5

In the morning, the Court starts with an insider trading case, Salman v. United States.  It’s an unusual subject to come before the Court, and could be interesting just on the facts of the case.  Columbia Law School’s blog offers an interesting discussion.

The second morning argument involves racism and the death penalty, although the official question being considered involves procedure.  In Buck v. Davis, the defendant seeks a hearing on whether “his trial counsel was constitutionally ineffective for knowingly presenting an ‘expert’ who testified that petitioner was more likely to be dangerous in the future because he is Black.”  Wow….  See a full discussion of the case here.

Unusually, the Court has scheduled an afternoon session today.  The case, Manuel v. City of Joliet, asks whether malicious prosecution can be brought under the 4th Amendment and involves a really shocking set of allegations of misconduct.  Morning arguments close at noon and the courtroom will be cleared at that time, with afternoon sessions beginning at 1:00.  Since afternoon sessions are so unusual, it’s hard to know what the crowds will be like, but it may well be easier to get in for this argument.

[The Court is closed Oct. 10 for Columbus Day]

Tuesday, October 11

The first case, Samsung Electronics v. Apple, involves damages in a patent infringement case and will be rather technical and involve a specialized area of law.  But the second case, Pena-Rodriguez v. Colorado, is an unusual examination of what happened during jury deliberations.  Ordinarily, juror comments are kept secret absent extreme misconduct.  In this case, it is alleged that one of the jurors made racist comments that would give reason to be believe the individual should have been excluded from juror service (but, obviously, this racism did not come to light during juror selection).  The Court has accepted cert. on the question of whether the usual veil of secrecy around what happens during deliberations “constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.” A useful overview is offered here.

There is another unusual afternoon argument today, but involving technical appeal procedure.  And there are no arguments scheduled for Wednesday this week.

Final argument days

The Supreme Court’s last day of schedule argument this term is April 27.  In the final two weeks, it will consider cases involving immigration (two “deferred action” programs) and compelled alcohol testing without a warrant.  [The Court also takes up issues relevant in patent and copyright litigation, the False Claims Act, specific criminal law issues, and other matters that are not recommended for the casual observer but are listed over on scotusblog.]

Monday, April 18

The sole case scheduled for today is among the most controversial of the term, U.S. v. Texas.  The case is a challenge by 26 states to the Obama Administration’s DACA and DAPA policies (more fully, Deferred Action for Children Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents).  The policies would (they were enjoined before implemented) provide guidelines for immigration authorities to postpone action on people who are alleged to be in the US illegally.  There is longstanding authority that the executive branch can choose how to prioritize prosecution of cases.  The central complication seems to be that formal deferred action would cause the individual to be termed “lawfully present,” which arguably comes with benefits and effects a change in the law that was not authorized by Congress or even arrived at through the normal process for considering and adopting Agency regulations (known as “notice and comment rule making,” as required by the Administrative Procedures Act) and would be–the states say–beyond the scope of what can be authorized by Executive Order.  One interesting and useful response to that argument is available here.

If you go to the arguments, follow that link and take some time to understand the terminology.  The politicized dispute is familiar but the legal arguments may be a little harder to follow without some preparation.  And get there early–this is a highly controversial area and the arguments are sure to draw a crowd.  (Or get there later and just plan to take in the demonstrations and press conferences out front.)

Wednesday, April 20

Several consolidated cases (one hour total) involve laws that make it a crime to refuse to take a drunk-driving test. The Court accepted cases with factual differences:  one person refused to take a breathalyzer, another refused a blood test, and another refused a field sobriety test and was then taken to the hospital for a blood test against his will.  In each instance, there was no warrant but a state law required compliance with a police officer’s order to take the test.  In 2013, the Court issued an opinion that seemed suspicious of general rules that no warrant was required, but noted that dissipation of alcohol in the blood could amount to risk of loss of evidence and “exigent circumstances” in at least some cases, permitting a search without a warrant.  However, the Court was divided and the facts were unclear in that case. A useful overview is available here.

The Court will also hear a case with limited applicability but a rather interesting question.  The Fair Labor Standards Act provides that certain types of employees are exempt from overtime pay, including “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”  The question in Encino Motorcars, LLC v. Navarro is whether “Service Advisors,” who meet the customer coming in for service and decide what services the customer needs, is within that category of employees exempt from overtime pay.

Feb 29 – March 2 cases

One of the most anticipated arguments of the term–involving abortion rights–is scheduled for Wednesday.   The Court also takes up gun control for persons convicted of domestic violence and the death penalty on Monday.

Monday, February 29

The first case will be viewed as a gun control issue in the context of domestic violence, but involves questions of Congressional intent where a federal law is triggered by a state law conviction.  Federal law prohibits firearm possession by someone who has been previously convicted of a crime of domestic violence.  Such a criminal act generally evokes intentional conduct, but 34 states have reckless assault laws.  The question is whether Congress intended for the federal prohibition to extend to convictions for laws that required only reckless conduct. Full write-up of all the issues in Voisine v. US is here.

The second argument is in a death penalty case.  The official question presented in Williams v. Pennsylvania describes the case well:  Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Tuesday, March 1

The cases today are important but fairly limited in scope.  Nichols v. US asks whether federal law requires a sex offender to update his registration in the state where he was convicted when he resides outside the US.  Husky International Electronics v. Ritz involves the “actual fraud” bar to discharging debts in bankruptcy.

Wednesday, March 2 – abortion

It has been eight years since the Supreme Court has directly taken on questions relating to laws that restrict access to abortion.  States may regulate abortion providers, just as they may regulate other medical practices, but laws that place an “undue burden” on a woman’s ability to access abortion are unconstitutional.  Regulations that improve safely and health typically survive the “undue burden” test, but in this case, providers argue that the restrictions Texas put into place do not actually enhance health and safety, despite the state’s claimed purposes.  The Court has accepted cert on the question of whether the Fifth Circuit erred by “refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health.”  Linda Greenhouse has co-authored a useful overview of this case and the history of the Court’s approaches to abortion rights and restrictions.

This case will draw a huge crowd.  It will be worth going to the Court just to see (or be part of) the crowds, demonstrations, and press conferences.  Demonstrations will start around 8:00am, may calm down a bit during the 10:00 argument and as people come and go, and then there will be more renewed demonstrations and press conferences when the arguing counsel exit the Court, probably around 11:30. If you want to get into the courtroom, you’ll need to get there very early; I wouldn’t be surprised if enough people camp out overnight to fill the court.  More than 80 amicus briefs have been filed, and the Solicitor General has been granted permission to participate in oral argument (in addition to counsel for the clinic and for Texas, the parties to this case).  I don’t see an order extending time for the argument, but no other case is scheduled for this day and I would expect the argument to run a little past the usual hour.

February 22-24 cases

Post-Scalia oral arguments begin next week, in cases involving veteran preferences, unlawful searches and the exclusionary rule, and federalism concerns in criminal law.

Monday, February 22

The first case today involves the preference for veteran-owned small businesses (VOSB) to be awarded government contracts.  Federal law requires that government agencies “shall award contracts” to a VOSB if two or more bid for the contract at a fair price.  In Kingdomware Technologies, Inc. v. United States, the VA wanted a new type of information technology. It consulted a list of companies that have supply contracts with the government and selected one that was not a VOSB.  A VOSB company challenged this, saying the VA should have conducted a market analysis, seen that VOSBs could have provided this tech, and put it up for bid.  It emphasizes the “shall award” part of the law; the VA emphasizes the “contracts” part of the law, asserting that a new order through a company with an existing government contract is just an order and not a contract, so not covered by the “shall award contracts” law.  In addition, there are two conflicting “canons of construction” (i.e., rules for how to interpret laws) that come into play in this case.  The first is known as “Chevron deference” and holds that courts should not override a federal agency’s interpretation of a law if there is ambiguity and the agency’s interpretation is not unreasonable.  This would, obviously, favor the VA.  But there is also the “veterans canon” which holds that if a law is ambiguous and involves veterans, it should be interpreted to favor veterans.  Take a look at this relatively long article.  If you go, be prepared to follow some jargon and alphabet soup.

The second case today is an important consideration of the exclusionary rule, which holds that evidence obtained illegally may not be used against the defendant.  In Utah v. Strieff, the police received an anonymous tip about a drug house and an officer stopped someone who came out of the house, demanded his ID, and ran a warrants check.  This was unlawful; the government concedes that the officer did not have reasonable suspicion to require the individual to stop and identify himself, as required for a “Terry stop.”  The unlawful stop and ID check resulted in realization that he had an outstanding “small traffic warrant,” so he was then arrested and searched, and found to be in possession of meth and drug paraphernalia.  The defendant moved to suppress the incriminating evidence because its discovery all flowed from an illegal seizure.  The government argues that the intervening event of discovery of an outstanding warrant makes the initial illegal stop irrelevant.  Ultimately, this case will reveal something about the Court’s attitude toward the exclusionary rule as a means to curb and correct unlawful searches, as this article discusses in more detail.

Tuesday, February 23

The first case today involves Federalism concerns in the context of criminal law.  The Hobbs Act makes it a federal crime to commit robbery or extortion that affects interstate commerce. It was originally enacted to reach racketeering, but now is often used in other context, such as drug crimes (as in this case, Taylor v. US).  The question in this case is whether the government has to show a connection with interstate commerce in each individual case or if it can rely upon a general principle “that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.”

The second set of arguments are on two consolidated cases involving damages for patent infringement. The Patent Act provides for enhanced damages (extra money), but the courts have limited that to willful misconduct under a stringent test.  The Supreme Court appears suspicious of those limitations, and has granted cert on the question of “Whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284, that is the same as the rigid, two-part test this Court rejected last term in Octane Fitness, LLC v. ICON Health & Fitness, Inc. for imposing attorney fees under the similarly-worded 35 U.S.C. § 285.”

[Wednesday’s cases involve complex issues under Federal Energy Regulatory Commission (FERC) programs and would not be recommended for the casual observer.  Recommendations for the week of Feb 29 will be posted later.]

 

Amicus in Port Militarization Resistance case

An important case, Panagacos v. Towery, involving Army spying on US activist groups is back at the 9th Circuit, and my friend Heidi Boghosian and I wrote this amici curiae brief on behalf of a number of organizations (Iraq Veterans Against the WarNational Lawyers GuildA.J. Muste InstituteCampaign to Bring Mumia HomeGranny Peace BrigadeTime’s Up!, and War Resisters League).

The brief discusses the historic and contemporary importance of maintaining a line between law enforcement and military operations, and argues that the 9th Circuit should “allow a jury to evaluate the real effects on Plaintiffs’ ability to exercise their constitutional rights of the cumulative practices of Army personnel, working with a local fusion center, in monitoring and acting against the Plaintiff anti-war group Port Militarization Resistance.” More info is on http://www.peoplevtowery.org.

January 19 & 20

Cases of interest this week involve First Amendment rights of public employees and land rights, including rights of Native Americans.

Tuesday, January 19

The first case today is a rather odd factual setting, involving a mistaken belief that a police officer engaged in political activity.  If he had, that would have been protected by the First Amendment — but since he actually hadn’t, is there any Constitutional violation?  If a government employee in a non-political position (someone who is not making policy and whose political affiliation should not be an issue for the job) is fired or demoted for engaging in activity protected by the First Amendment, that person would have a lawsuit for unlawful retaliation.  In Heffernan v. City of Paterson, a police officer was demoted because he was perceived to be supporting a challenger to the Mayor, while the sheriff supported the incumbent.  However, the officer was not actually supporting that candidate; he was just picking up yard signs for his mother.  The 10th Circuit dismissed the officer’s lawsuit, holding that he could not sue for retaliation for engaging in political activity because he had not in fact engaged in political activity (even though his supervisors thought he had, and explicitly said they were demoting him because of his support for the other candidate).  The Supreme Court granted cert. on the question “Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.”

The second case up for argument today is a technical question and will be of interest to fewer people, but those concerned with limits on the jurisdiction of federal courts may be interested.  Federal courts have jurisdiction when there is a “federal question” (interpretation of a federal law or the US Constitution) or, as relevant in this case, there is a “diversity of citizenship” (plaintiffs and defendants live in different states).  Diversity is not always obvious when the parties are corporations or other artificial entities.  Americold Realty Trust v. ConAgra Foods asks “whether the citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.”

 

Wednesday, January 20

The two cases today involve land rights.  The first, Nebraska v. Parker, involves the jurisdiction of Native American tribes.  The specific issue is whether or not the Omaha tribe can impose a tax on liquor sales in territory it claims.  In the early 1880s, Congress opened up the area to settlers, but it is not clear if that resulted in complete loss of the tribe’s governing authority, and there is a general legal principle that Native American land interests should not be diminished if there is ambiguity.  See the above link for a full description of the history and legal principles.

The second case is specific to Alaska, involving the jurisdiction of the National Park Service.  The factual background is nuanced and important to resolution of the case, involving failed efforts to resolve land ownership disputes among the federal government, private individuals, the state of Alaska, and Native American tribes.  See this helpful overview of Sturgeon v. Frost.