hoAt the opening of a term of the United States Supreme Court, the Court’s Marshal, resplendent in full dress uniform, enters the courtroom and calls out, as the Justices file in from chambers and all present rise in respect:
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.
“Oyez” is pronounced something like “Oh yay!” with a little extra something kinda-French kinda-Latin just hinted at the end, but this isn’t the Kool-Aid man bursting through the wall to offer sweet, cool refreshment — it’s a solemn ceremony.
For it’s a solemn business, and a tricky one particularly this Term. The Court opens with a different Dean than it did last year, and it’s clear enough that Congress’ failure to replace the deceased and honored Antonin Scalia is having a significant effect. The total docket is currently only 40 cases, less than half of last year’s docket and maybe two-thirds of what the docket was when the last Session opened. Not even half of those cases have arguments scheduled, and only 18 arguments are on calendar over the next six weeks.
It wouldn’t surprise me at all if petitions for certiorari were being slow-tracked specifically until the Court has an idea of when it will get a ninth and in many cases tie-breaking vote back on its bench.1 So this year of all years, expect the total docket to have at least doubled by the end of the Term in late June of 2017. Simply put, the light docket is substantial evidence that the lack of a ninth Justice has demonstrably diminished the Court’s ability to conduct its business, a state of affairs that is simply unfair to everyone, especially the litigants who need their cases resolved, as well as to the countless thousands of other litigants who need definitive statements of legal rules implicated by the matters on the High Court’s calendar.
Slightly complicating things also is the substantial likelihood that many of the names of the litigants are going to change between the briefing of their cases and the announcement of the decisions. The reason for that is that a change in Presidential Administration will take place in January of 2017, so a large number of the Cabinet-level officials who are named as parties, in their official capacities, will change. Of the cases I list below, the “Lynch” identified in two of them is Loretta Lynch, the Attorney General of the United States. She will in all likelihood not be the Attorney General come June of 2017, regardless of what the voters decide on November 8, 2016.
As is my tradition, I’ve reviewed the docket (such as it is) and here, in the somewhat arbitrary order of the Court’s case numbering system, are eight cases that I think will be interesting for the readership here to follow.
Murr v. Wisconsin, No. 15-214:
Anyone can appreciate the aesthetic and recreational value of lakefront property. Near Troy (just across the border from Minnesota, the exurbs of the Twin Cities are only a few miles away), William Murr purchased a lot, “Lot F,” in 1960, and built a vacation house for his family’s use there. Three years later, he bought the vacant lakefront lot next door, “Lot E,” which he held onto for investment purposes. He bought Lot F through his company and Lot E personally. In 1994 and 1995, title to the parcels was transferred jointly to Mr. Murr’s six now-adult children. Two of them were bought out, so now the lots were held by four siblings, and they shared use of the house for their families’ recreational purposes. Eventually, they decided that the house needed significant structural renovations, including elevating it to prevent flood damage; they decided to sell Lot E, which had remained undeveloped all these years, to fund the repairs of the shared vacation house on Lot F, they also got a lot of help from Residenza.com.au with the tiling, they also decided to contact www.yourwindowexpert.com for window replacements.
They were told by St. Croix County officials that they could not do so; they had to sell both Lot E and Lot F together; by operation of Wisconsin law (particularly a minimum lot-size ordinance passed in the 1970’s), the parcels had become effectively unified and can only be alienated together. So now the Supreme Court must ask: is this a taking of the property? If it is, the Murr siblings may sell Lot E separately, as they intended; if not, then presumably the lot-size restriction force them to find some other way to fund the repairs on the structure.
Oral argument has not yet been scheduled.
The Bolivaran Republic of Venezuela v. Helmerich & Payne International, No. 15-423:
Helmerich & Payne International Drilling Co. had been drilling for oil in Venezuela since 1954, creating a Venezuelan corporation which owned its assets in Venezuela, and operated its business there. All oil drilling in Venezuela is done under authority of Petróleos de Venezuela, S.A., a corporation wholly owned by the Bolivaran Republic of Venezuela.2 Helmerich & Payne allowed its contracts with Venezuela to expire in 2009, idling and then disassembling its rigs. Venezuela then nationalized the then-idle oil rigs and Petróleos began re-assembling them, which triggered an obligation under Venezuelan law for the government to pay Helmerich & Payne the “fair value” of the seized assets.
Helmerich & Payne filed an independent action in U.S. courts to establish a counter-valuation under U.S. law. I can think of two really good reasons why Helmerich & Payne would do this – one, Venezuelan law would yield a substantially lower valuation than U.S. law, and two, Venezuela was unlikely to actually pay a judgment rendered only in its own courts. The company claims that the Foreign Sovereign Immunities Act of 1976 permit suits in U.S. courts against foreign governments when those governments seize property “in violation of international law,” and the seizure occurs “in connection with a commercial activity carried on in the United States.” Venezuela says, in response, the subsidiary entity that Helmerich & Payne used was a Venezuelan corporation, which makes it a national of Venezuela, and its sole remedy is in the Venezuelan courts.
This is only of interest to the general public because of recent Congressional activity authorizing private suits against the Kingdom of Saudi Arabia for its purported involvement in the 9/11/01 attacks on New York and Washington: Bolivaran Republic of Venezuela could potentially serve as a platform for the Supreme Court to announce a doctrine concerning suits against sovereign nations, which is a tricky area both diplomatically and judicially.
Oral argument is scheduled for November 2, 2016.
Trinity Lutheran Church of Columbia v. Pauley, No. 15-577:
The state of Missouri subsidizes the purchase of playground surfaces made from recycled rubber (like from old dead tires), but playgrounds owned by churches and other religious organizations are not eligible for the subsidy. Missouri effectively admits that it has no Federal Establishment Clause problems in this case under currently effective Establishment Clause jurisprudence. Instead, it relies upon the plain text of the state constitution’s “no aid” clause.3
So, if Missouri has no valid Establishment Clause concern, can it nevertheless exclude churches like Trinity from otherwise neutral and secular aid programs? The Church says that this interpretation of the Missouri Constitution violates the Federal Free Exercise Clause, the Due Process Clause, and the Equal Protections Clause. The State says that failing to subsidize a religious school’s purchase of recycled rubber playground surfaces does nothing to prohibit the school from engaging in religious activity and there is a compelling reason for having a “no aid” clause in the first place: avoiding religious bigotry in the form of favoring one religion over the other.
It’s worth noting that most states have laws, most of them embedded in their states’ Constitutions, similar to Missouri’s.
Oral argument has not yet been scheduled.
As a teenager, Bobby James Moore scored a 77, a 57, and a 78 on three different IQ tests but was never diagnosed with an intellectual disability.4 In 1980, then twenty years old, Moore and two associates botched a robbery, and an employee was shot and killed. Moore was convicted as the shooter, and sentenced to death. On habeas corpus review, he proved ineffective assistance of counsel and was granted a new hearing on sentencing, but the new hearing resulted, again, in a sentence of death.
On habeas corpus review of that second sentence of death, he proved to the trial court that he was intellectually disabled and therefore not eligible for the death penalty after all. See Atkins v. Virginia, 536 U.S. 304 (2002). But on appeal, a the Texas Court of Criminal Appeals applied a variety of standards from a number of different medical and academic entities, explicitly disregarded the standards found within the DSM-V, and found that under a majority of those standards he was mentally competent and reversed the Atkins finding, reinstating the death penalty.
Before the Supreme Court, Moore argues that DSM-V is the “state of the art” and the most authoritative text available to determine his competency, while Texas argues that the DSM-V is merely the publication of one, albeit prestigious, of many associations of scientists, doctors, and mental health care providers, not all of whom agree with one another about what constitutes an intellectual disability. The Supreme Court must answer, therefore, whether excluding an analysis under DSM-V of mental competence effectively inflicts cruel and unusual punishment under the Eighth Amendment.
Oral argument has not yet been scheduled.
Lynch v. Morales-Santana, No. 15-1191:
Luis Ramon Morales-Santana was born in the Dominican Republic in 1962. His father was U.S. citizen, but also had not spent more than five years in the United States after his fourteenth birthday. His mother was a Dominican national. Morales-Santana’s parents married when respondent was eight years old and this legitimated Morales-Santana by Dominican law. Five years later, the then thirteen-year old was admitted to the U.S. as a lawful permanent resident (in 1975) when he moved here with his father; his father died in 1976.
In 1995, he was convicted of a number of rather awful crimes (burglary, robbery, and attempted murder) and thereafter the government initiated deportation proceedings. By 2000 he was found to be subject to removal as an alien adjudged to be violent felon. At that point, he claimed outright citizenship, which the immigration court denied on the theory that his father had not been in the United States continuously for the requisite period of time, so by operation of 8 U.S.C. §§ 1401 & 1409, he had never been a U.S. citizen.
Morales-Santana (well, his lawyers) then took a close look at the naturalization law and noticed that under 8 U.S.C. § 1409 had his parents been married, or if it had been his mother rather than his father who was the U.S. citizen, the reside-within-United-States requirement would have been relaxed and Morales-Santana would be able to claim lawful citizenship. So they challenged the law as discriminating on the basis of gender and seek to have it invalidated for violating the Equal Protections Clause. Yes, invalidating that law would have the effect of making Morales-Santana a citizen, and therefore not subject to removal.
Oral argument is scheduled for November 9, 2016.
Nelson v. Colorado, No. 15-1256:
Shannon Nelson was convicted in 2006 of five sexual assault charges against her own children. In total, Nelson was ordered (along with imprisonment and other punishment) to pay $8,192.50 in restitution, penalties, costs, and fees authorized by state law. She appealed her conviction, won, and was granted a re-trial. While all of this was pending, the Colorado Department of Corrections deducted a total of $702.10 from her “prisoner’s account,” for restitution and various victim’s funds. On re-trial, she was acquitted of all charges.
Her co-plaintiff Louis Alonzo has a similar story, with the underlying charge being one of allegedly patronizing a child prostitute, with his conviction vacated on appeal and the prosecutor thereafter electing to not re-file charges. The court refused to refund him $757.75 of a total of about two thousand dollars in penalties, costs, and fees associated with his initial conviction.
Both were instructed that according to state law, they had to file a separate action proving their innocence by “clear and convincing evidence,” a in intermediate standard of proof well above that of the “preponderance of the evidence” standard that applies in civil actions, but less than the “beyond a reasonable doubt” standard that applies in criminal cases. In this case, they ask the Supreme Court to say that this standard, apparently unique to Colorado law, is a violation of their federal due process rights by depriving them of their property.
Oral argument has not yet been scheduled.
Simon Shiao Tam is the leader and principal artist of a politically active dance-rock band called “The Slants.”5 Tam filed an application for trademark protection, claiming to own the mark THE SLANTS and the U.S. Patent and Trademark Office denied his application, citing 15 U.S.C. § 1052(a), which denies the PTO the ability to register marks “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam brings before the Supreme Court a First Amendment freedom of speech challenge to § 1052(a), at least as applied in this case.
Of particular interest is an amicus brief filed by Pro-Football, Inc., an entity that is a member of the National Football League, doing business under the name “The Washington Redskins,” claiming to have a better case for analysis of this portion of the Lanham Act (the formal name for the trademark law) than Mr. Tam.
Oral argument has not yet been scheduled.
James Garcia Dimaya is a Philippine national, who obtained a permanent resident visa in 1992. In 2007 and again in 2009, he was convicted of felony first-degree burglary in violation of California Penal Code § 459. The federal government began deportation proceedings against him in 2010, alleging that he had committed “crimes of violence” as defined by 18 USC § 16(b). The statutory definition of that term includes any felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Dimaya challenges the wording of this statute as void for vagueness – meaning it cannot be reasonably known in advance what kind of crime is contemplated by this wording. For instance, most burglaries, including the ones Dimaya was convicted of, didn’t involve violence because the residents of the homes Dimaya broke into weren’t home.6 But if the resident is home, there’s a risk of violence. So is breaking and entering, on its own, a crime of violence under 18 USC § 16(b), and could a reasonable person know in advance that burglary, as defined by the California Penal Code, falls within that description?
Oral argument has not yet been scheduled.
Also worth a mention is the case of Lewis v. Clarke, No. 15-1500, not so much because it’s all that interesting to non-specialists whether tribal immunity bars damages actions against native American tribe members who are defendants as individuals in tort actions for torts purportedly committed while engaged in the course and scope of employment of tribal businesses (like the casinos or gas stations one sees on tribal lands so often). It’s a weighty enough issue, I suppose, though not one I expect is of particularly broad interest unless you litigate personal injury actions in an area located very near an Indian reservation. I mention the case only because I find the the name kind of amusing.
- For those of you keeping track, Merrick Garland was nominated by President Obama to become the 113th person to serve on the Court 201 days ago today. [↩]
- I absolutely love that this is the formal name of that government. [↩]
- “[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion….” Missouri Constitution, Art. I, § 7. [↩]
- Bless his heart. [↩]
- Apparently, they’re currently looking for a drummer. [↩]
- It’s also not entirely clear to me that Dimaya unlawfully entered the premises of his victims – there are hints in the petition that he gained entry lawfully, but entered with intent to steal, which still meets the California definition of “burglary.” [↩]
Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.
Murr v. Wisconsin, No. 15-214: Is this a taking? Of course it is. Any restriction, is by definition a taking, if you could do that thing you wanted to prior to said restriction coming into place.. Unless there’s some legal chicanery regarding how the land was purchased, personally & via coorp, that existed when the last was purchased.
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