…and welcome back! While some of you may still be pondering/celebrating/cursing last term’s Hobby Lobby finale, time and the Nine march on. The October 2014 Term officially kicked off this morning with a bang (well, two, if we’re also counting the sound of Scott Harris’s gavel).
The Court this morning released orders from its September 29th “Long Conference,” where the 2000-odd cert petitions that piled up over the summer were considered. The headline news is the Court’s denial of cert for all seven petitions arising from challenges to state same-sex marriage bans. Many court watchers felt certain that at least one of these petitions would be granted, given the national attention to the issue and the fact that both the winners and losers in each case sought review. On the other hand, there has been no circuit split—something Justice Ginsburg made note of in a speech in Minnesota last month. The denial of cert in these cases will likely result in eleven new states allowing gay marriage, bringing the total to 30, plus D.C. Now, all eyes are on the Sixth Circuit, which could be the first to cause a split necessitating review. Stay tuned…
One other cert denial drew our attention (from page 11 of 89) in this morning’s order list. Although it may not warrant quite the attention lavished on the gay-marriage denials, we’re pleased to report that the Court denied cert in Doe v. Zedillo Ponce de Léon (13-1380), where Wiggin and Dana’s Jonathan Freiman and Update co-author Tadhg Dooley filed an opposition on behalf of their client, Ernesto Zedillo, the former president of Mexico.
Now, on to other business! Though the term is only a few hours old, it’s never too early for a summary Ninth Circuit reversal. Today’s came in Lopez v. Smith (13-946), where the Court offered another reminder that a petition for habeas corpus may only be granted if a state court’s decision is contrary to, or involved an unreasonable application of, clearly established law as determined by the Supreme Court, not the Ninth Circuit. Marvin Smith was convicted of the brutal murder of his wife. At trial, the prosecution argued primarily that he had killed her himself, but also argued that the jury could convict on a theory of aiding and abetting. The verdict did not specify whether the jury found Smith guilty as principal or aider/abettor. In his habeas petition, Smith argued that he had inadequate notice of the possibility of conviction on an aiding-and-abetting theory. The District Court agreed, and the Ninth Circuit affirmed, albeit without citing any Supreme Court case holding that a defendant must receive specific notice of the possibility of an aiding-and-abetting theory where, under state law, aiding and abetting a crime is the same substantive offense as perpetrating the crime. In its per curiam decision, the Supreme Court held that, because none of its cases clearly establish that a defendant is entitled to notice of the possibility of conviction on aiding-and-abetting conspiracy where the prosecution principally contends that the defendant was the principal, it was error to grant the writ.
That takes care of today’s orders, but the Court got an early jump on business last week, granting cert in ten new cases:
Tibble v. Edison Int’l (13-550) asks: “Whether a claim that ERISA plan fiduciaries breached their duty of prudence by offering higher-cost retail-class mutual funds to plan participants, even though identical lower-cost institution-class mutual funds were available, is barred by 29 U.S.C. § 1113(1) when fiduciaries initially chose the higher-cost mutual funds as plan investments more than six years before the claim was filed.”
Coleman v. Tollefson (13-1333) asks: “Whether, under the ‘three strikes’ provision of the Prison Litigation Reform Act, a district court’s dismissal of a lawsuit counts as a ‘strike’ while it is still pending on appeal or before the time for seeking appellate review has passed.”
Ohio v. Clark (13-1352) asks: “(1) Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as ‘testimonial’ statements subject to the Confrontation Clause.”
Texas Dep’t of Housing v. Inclusive Communities Project (13-1371) asks: “Whether disparate impact claims are cognizable under the Fair Housing Act.”
Kerry v. Din (13-1402) asks: “(1) Whether a consular officer’s refusal of a visa to a U.S. Citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.”
Williams-Yulee v. Florida Bar (13-1499) asks: “Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.”
Rodriguez v. United States (13-9972) asks: “Whether, under the Fourth Amendment an officer may extend an already-completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification.”
Armstrong v. Exceptional Child Center (14-15) asks: “(1) Whether the Supremacy clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(3)(A) against a state where Congress chose not to create enforceable rights under that statute; and (2) whether, if Medicaid providers have a private right of action, a state’s Medicaid provider reimbursement rates are preempted by 42 U.S.C. § 1396a(a)(30)(A) where they do not bear a reasonable relationship to provider costs and remain in place for budgetary reasons.”
EEOC v. Abercrombie & Fitch Stores (14-86) asks: “(1) Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a ‘religious observance and practice’ only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”
and Baker Botts v. Asarco (14-103) asks: “Whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.”
The Court also accepted Arizona State Legislature v. AZ Independent Redistricting (13-1314) for argument, deferring the question of its jurisdiction until the hearing on the merits. In addition to the question of the Arizona Legislature’s standing, the case poses this question: “Does the Elections Clause of the United States constitution and 2 U.S.C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts?”
Two more orders of note from last week before we stop to catch our breath:
In Husted v. NAACP (13A336), the Court granted an application by the State of Ohio to stay execution of a lower court ruling that would have permitted voting to begin a week early and to include most Sundays and evenings—something voting-rights advocates (and Democrats) believe is necessary to fully extend the franchise to poor, elderly, and urban voters who have difficulty getting to the polls on election day. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented. Although the State had suggested that the Court consider its stay application as a petition for cert, it declined to do so. We’ll keep you posted if and when cert is granted.
The Court also DIG’ed a hotly anticipated securities class-action petition, which had been set for argument today. In Public Employees Retirement Sys. v. Indymac (13-640), the Court was poised to settle a circuit split over whether Section 13 of the Securities Act is a statute of limitations, which can be tolled as to putative class members by the filing of a putative class action, or a statute of repose, which is not subject to tolling. The Court had called for supplemental briefing two weeks ago on the effect of a proposed settlement between the parties on the case going forward. Though all parties filed briefs urging the Court to proceed with the argument, it decided, without discussion, to dismiss the petition as improvidently granted.
So, considering OT14 began only hours ago, we’re off to a pretty fast start. We’ll do our level best to keep you up to speed as the term unfolds.