Petitions of the week

By on Oct 23, 2018 at 5:00 pm

This week we highlight petitions pending before the Supreme Court that address the preclusion of legal damages if the equitable defense of unclean hands is asserted; the constitutionality of the Florida Department of Corrections’ ban on Prison Legal News; and the eligibility of a criminal defendant convicted of violated the Maritime Drug Law Enforcement Act for relief, under the “safety valve” of 18 U.S.C. § 3553(f), from a mandatory minimum sentence.

The petitions of the week are:

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issue: Whether the Florida Department of Corrections’ blanket ban of Prison Legal News violates a petitioner’s First Amendment right to free speech and a free press.


Issue: Whether a criminal defendant convicted of violating the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501, et seq., and subject to a mandatory minimum sentence under 21 U.S.C. § 960, is eligible for relief from that mandatory minimum under the statutory “safety valve” of 18 U.S.C. § 3553(f).


Issue: Whether the equitable defense of unclean hands precludes legal relief in the form of damages.

The last few decades have seen a sharp rise in the number of plea bargains. The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains. This increase in negotiated guilty pleas has accelerated a seeming anomaly — appeals from guilty pleas. In turn, prosecutors now commonly insist on the inclusion of appeal waivers in plea agreements.

This chain of developments, roughly speaking, has led the U.S. Supreme Court to Garza v. Idaho, which it will hear on October 30. When a defendant’s trial lawyer fails to file an appeal as the client has instructed on the ground that the plea agreement included an appeal waiver, must the defendant demonstrate “prejudice” in order to make out a claim of ineffective assistance of counsel? Since the Supreme Court’s 2000 decision in Roe v. Flores-Ortega, prejudice has been presumed when a lawyer has failed to file an appeal as directed by the client. But Flores-Ortega, now almost two decades old, did not involve an appeal waiver. Garza gives the court an opportunity to address this situation.

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UPDATE: This post has been updated to include statements from the eight associate justices and three retired justices.

Retired Justice Sandra Day O’Connor, the first woman to sit on the Supreme Court, announced today that she has been diagnosed with dementia, “probably Alzheimer’s disease,” and that as her “condition has progressed,” she is “no longer able to participate in public life.”

O’Connor’s announcement came one day after Jessica Gresko of the Associated Press reported that O’Connor had “stepped back from public life” and that her sons had cleared out O’Connor’s office and files at the Supreme Court. O’Connor announced in 2005 that she planned to step down from the court in no small part to spend more time with her husband, John, who was suffering from Alzheimer’s disease. John O’Connor died in 2009.

In a letter released by the Supreme Court’s Public Information Office that was addressed to “Friends and Fellow Americans,” the 88-year-old O’Connor was characteristically straightforward. Noting that “many people have asked” about her health and activities and that she wanted “to be open about these changes,” O’Connor wrote that “[s]ome time ago” she was “diagnosed with the beginning states of dementia.”

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Washington State Department of Licensing v. Cougar Den Inc. pits an 1855 treaty against a 2006 state statute designed to avoid tribal tax immunity. Cougar Den, owned by Yakama tribal citizen Kip Ramsey, imports gasoline from Oregon over 27 miles of Washington state highway into the Yakama reservation for sale at Yakama gas stations. In 2013, the Washington Department of Licensing sued Cougar Den for failure to pay millions in taxes for importing motor vehicle fuel into the state. Both the department’s administrative appeals process and the Washington Supreme Court held that Cougar Den was exempt from the taxes under the right to travel guaranteed in the Yakama’s treaty with the United States.

The Yakama treaty is one of several the United States negotiated in the 1850s with tribal nations in what later became Washington state. Those treaties have come before the Supreme Court many times — including just last term — for their provision reserving to the tribes the right to fish at their “usual and accustomed places” outside their reservations. But only the treaty with the Yakama includes a provision guaranteeing that tribe “the right, in common with citizens of the United States, to travel upon all public highways.” Past litigation established the reasons for this provision. Travel for trade had been crucial for the Yakamas, who had been the conduit for goods exchanged between the coastal tribes of the Pacific Northwest and the Plains tribes to the east. To secure Yakama agreement to land cessions, the United States promised that the Yakamas could continue using the highways — implicitly for trade.

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Tuesday round-up

By on Oct 23, 2018 at 6:45 am

Amy Howe reports for this blog that last night the Supreme Court “gave the federal government a partial victory … in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census” when,  “[w]ithout any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision.” At The Washington Post, Robert Barnes and Tara Bahrampour report that “[t]he court’s action makes it unlikely that Ross will have to give a deposition in the case but allows the suit to go forward, at least temporarily.” Brent Kendall reports for The Wall Street Journal that the justices “did leave open the challengers’ ability to gather information from elsewhere in the Trump administration, including by questioning Justice Department lawyer John Gore about his connection to the citizenship question.” Additional coverage comes from Richard Wolf at USA Today, Mark Sherman at the Associated Press, Stephen Dinan for The Washington Times, and Adam Liptak for The New York Times, who reports that “Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, said the Supreme Court should have gone further, shutting down all pretrial fact-gathering in the census case.”

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The Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census. Without any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision. And although the justices rejected the government’s request to block other discovery in the case – specifically, the deposition of John Gore, the acting head of the civil rights division of the Department of Justice, and additional discovery outside the administrative record for the decision – they hinted that the government might be able to get broader relief further down the road. Continue reading »

The law of individual arbitration clauses has been a recent hot topic both in the courts and among the public. That is in part because of one of last term’s blockbuster cases, Epic Systems Corp. v. Lewis, in which the Supreme Court held that individual arbitration clauses in employment contracts were consistent with the National Labor Relations Act, which protects employees’ ability to engage in collective action. Epic Systems was the most recent of a string of cases in which the court has characterized arbitration as a process that primarily takes place on a bilateral basis, rather than on a class or collective one. But the court has also emphasized that parties can vary their arbitration contracts to fit their circumstances, including by allowing for class or collective arbitration – a modification that few businesses likely to want to make, because research suggests that eliminating procedures for employees or consumers to bring their claims on an aggregated basis makes it less likely that those claims will be brought at all. In Lamps Plus Inc. v. Varela, the Supreme Court will decide whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer did consent to class arbitration when it included language in the arbitration contract that committed the parties to use arbitration “in lieu of any and all lawsuits or other civil legal proceedings,” specified that arbitral claims include those “that, in the absence of this Agreement, would have been available to the parties by law,” and authorized the arbitrator to “award any remedy allowed by applicable law.”

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The Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs.

Less than five months ago, the justices issued a narrow ruling in the case of Jack Phillips, a devout Christian and Colorado baker who told a gay couple that he would not design a cake for their upcoming festivities. The decision, authored by now-retired Justice Anthony Kennedy, emphasized that the Colorado administrative agency that had ruled against Phillips had treated him unfairly by being too hostile to Phillips’ religious convictions. However, the Supreme Court did not resolve a key question in the case: When can sincerely held religious beliefs like Phillips’ trump neutral laws that apply to everyone?

In a petition for review filed on Friday, an Oregon couple has asked the Supreme Court to return to that question. The couple, Melissa and Aaron Klein, owned a bakery in the Portland suburbs that they called Sweetcakes by Melissa.

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The November argument session begins with yet another case under the Federal Arbitration Act — Henry Schein Inc. v. Archer & White Sales Inc. With Henry Schein, New Prime Inc. v. Oliveira (from October) and Lamps Plus Inc. v. Varela (later on Monday morning), the court will have three FAA cases under its belt before the first of November – almost a match for the Armed Career Criminal Act!

The issue in this case is straightforward: who decides whether a particular dispute should be decided in arbitration rather than a court. As you might expect, the baseline expectation is that a court gets to decide whether to send a dispute from its docket to a private arbitrator. The Supreme Court has recognized, though, that the arbitrator decides those “gateway” issues of arbitrability if the parties “clearly” and “unmistakably” agree that the arbitrator should do so. The parties might agree, for example, that the arbitrator would decide whether a particular dispute does – or does not – “arise out of” the contract that includes the arbitration clause. And if they make such an agreement, the arbitrator will assess whether any particular dispute is sufficiently related to the contract to warrant arbitration.

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First Mondays is live from Columbia Law School, where we bring in a ringer: Professor Richard Epstein of NYU. He joins us in discussing the frogs of Weyerhaeuser Company v. United States Fish and Wildlife Service and a very mysterious brief in opposition for United States v. Haymond.

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