At its April 13, 2012 Conference, the Court will consider such issues as a challenge to the First Amendment “scarcity doctrine” in broadcasting, the right to a speedy trial when the defendant was not indicted, aggregating errors for ineffective assistance of counsel claims, and whether New York City’s rent regulation is a Fifth Amendment taking.  This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Gardner v. Chism

Docket: 11-987
Issue(s): (1) Whether the qualified immunity question of whether an officer reasonably could have believed that an affidavit provided probable cause is barred whenever a court concludes that (a) correction of affidavit inaccuracies and omissions would eliminate probable cause, and (b) the plaintiff has a triable question whether the officer recklessly or intentionally included or omitted the information; and (2) whether, in concluding that the affidavit in this case contained misstatements and omissions and did not demonstrate probable cause when the misstatements and omissions were accounted for, the Ninth Circuit failed to heed Illinois v. Gates in that probable cause is a commonsense practical, not hypertechnical, inquiry that is concerned with reasonable probability, not certainty.

Certiorari stage documents:

Sutton v. Colson

Docket: 11-981
Issue(s): Whether the prejudice arising from multiple errors committed by defense counsel should be considered cumulatively for purposes of deciding whether counsel rendered ineffective assistance under Strickland v. Washington.

Certiorari stage documents:

Barberis v. Retirement Plan for Employees of S.C. Johnson & Son, Inc.

Docket: 11-843
Issue(s): Whether, under the applicable federal discovery rule, a plaintiff ’s cause of action accrues, and the limitations period begins to run, when – (1) the plaintiff knew or should have known of his or her injury; (2) the plaintiff knew or should have known of the conduct constituting the violation; (3) the plaintiff knew or should have known of a factual basis of all elements of his or her claim; or (4) the plaintiff knew or should have known of some other circumstance or combination of circumstances.

Certiorari stage documents:

Retirement Plan for Employees of S.C. Johnson & Son, Inc. v. Barberis

Docket: 11-970
Issue(s): (1) Whether a cause of action under ERISA Section 502(a), 29 U.S.C. § 1132(a), accrues when a plan publishes and describes an unlawful change in benefits in its plan materials or only years later when the participant recognizes the legal error; (2) whether, when a plan’s methodology for calculating benefits is deemed void years later and it becomes necessary to determine which of a number of ERISA-compliant formulas the plan would have selected, a court should defer to the view of a plan administrator with “the exclusive right to interpret the Plan and to decide all matters arising thereunder, including without limitation, the power to determine eligibility for benefits under the Plan and the amounts of such benefits” or should instead decide the matter without deference.

Certiorari stage documents:

Mann v. California

Docket: 11-775
Issue(s): Whether California’s rule – that the Sixth Amendment right to a speedy trial does not apply when a defendant is charged by complaint and arrested and arraigned on the complaint but does apply if the defendant is indicted or held to answer on an information – should be overruled.

Certiorari stage documents:

Kirtsaeng v. John Wiley & Sons, Inc. (Granted )

Docket: 11-697
Issue(s): How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?

Certiorari stage documents:

National Association of Broadcasters v. Federal Communications Commission

Docket: 11-698
Issue(s): Whether the Third Circuit correctly upheld and retained future jurisdiction over media broadcast ownership rules promulgated by the Federal Communications Commission, where the D.C. Circuit previously held that the very local television ownership rule approved by the Third Circuit was arbitrary and capricious and not necessary in the public interest.

Certiorari stage documents:

Tribune Company v. Federal Communications Commission

Docket: 11-696
Issue(s): (1) Whether the scarcity doctrine of Red Lion Broadcasting Co. v. FCC , should be overruled, thereby invalidating the Federal Communications Commission’s media ownership rules; and (2) whether the FCC’s continued restriction on the cross-ownership of newspapers and broadcast stations in the same market violates the First and Fifth Amendments because it singles out newspapers among all forms of mass communication for unequal treatment.

Certiorari stage documents:

Media General Inc. v. Federal Communications Commission

Docket: 11-691
Issue(s): Whether this Court should reconsider its decision in FCC v. National Citizen Committee for Broadcasting, that broadcast ownership restrictions are subject only to rational basis review.

Certiorari stage documents:

Skilling v. United States

Docket: 11-674
Issue(s): (1) Whether Neder v. United States permits a court conducting a harmless-error analysis in the context of an “alternative theory” case to consider only the strength of the government’s case on the legally valid theory, without regard to whether the defendant contested that theory enough to create a factual dispute that rationally could have been resolved in the defendant’s favor; and (2) whether a court conducting a harmless-error analysis in the context of an “alternative theory” case may categorically exclude the defendant’s testimony in his own defense on the legally valid theory.

Certiorari stage documents:

Harmon v. Kimmel

Docket: 11-496
Issue(s): (1) Whether a permanent scheme of possessory rent regulation with no foreseeable end exceeds the limits of the noncompensable exercise of the police power established in Block v. Hirsh, Pennsylvania Coal Co. v. Mahon, and other decisions of this Court, which upheld the constitutionality of rent regulation and tenant possession without an owner’s consent, only as a temporary measure to address an “emergency” of limited duration; (2) whether the “explicit textual ... constitutional protection” of the Fifth Amendment against government takings bars a substantive due process claim that possessory rent regulation is arbitrary in violation of the Fourteenth Amendment; (3) whether rent regulation that “compel[s] a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy” effects a taking proscribed by the Fifth Amendment as posited in Yee v. City of Escondido; and (4) whether, prior to enactment of possessory rent regulation, the Due Process Clause requires that personal notice or notice by certified mail and a meaningful opportunity to be heard be provided to an owner whose property selectively is made subject to such rent regulation.

Certiorari stage documents:

 

Posted in Cases in the Pipeline

Recommended Citation: Matthew Bush, Petitions to watch | Conference of April 13, 2012, SCOTUSblog (Apr. 9, 2012, 10:54 AM), http://www.scotusblog.com/2012/04/petitions-to-watch-conference-of-april-13-2012/