This morning the Supreme Court issued orders from last week’s conference, adding two new cases to its merits docket for next term. Although neither case involves the kind of high-profile issue that is likely to make front-page news, both present significant legal questions that lawyers and law professors will certainly follow closely.

With its announcement that it will hear oral argument in Knick v. Scott Township, the court will once again wade into the thorny area of property rights. The court has ruled that before a property owner can file a lawsuit in federal court, seeking compensation for the government’s unconstitutional “taking” of property, the owner must first pursue all available state-court remedies. However, some justices have questioned whether the court should reconsider this doctrine, and today the justices agreed to do so in the case of Rose Mary Knick, who lives on 90 acres of land that she owns in rural Pennsylvania. In 2012, the town where Knick’s property is located passed an ordinance that requires all owners of cemeteries to provide public access to those sites during daylight hours, through a right of way from the nearest road. This new ordinance, town officials said, applies to a private cemetery that, they contended, is located on Knick’s land. Knick went first to state court to challenge the ordinance, but the Pennsylvania court declined to rule on her lawsuit because the town had withdrawn its notice of violation and agreed not to enforce the law against Knick. When Knick next went to federal court, the district court dismissed her claims on the ground that they had not first been exhausted in state court. The U.S. Court of Appeals for the 3rd Circuit ruled for the town, but now the justices will weigh in.

In Gundy v. United States, the justices will return to a topic that they have tackled several times in the last few years: the interpretation of the Sex Offender Notification and Registration Act. The petitioner in the case is Herman Gundy, who was on supervised release in Maryland after pleading guilty to federal drug charges in Pennsylvania. While in Maryland, Gundy was convicted of a sex offense – raping an 11-year-old girl to whom he had given cocaine – and sentenced to 20 years in prison. When he finished serving his sentence on the sex-offense charge, he was transferred to federal custody to serve his sentence for violating his federal supervised release. The Bureau of Prisons sent him to a federal facility in Pennsylvania, where he received permission to travel, without supervision, by bus from Pennsylvania to New York.

In January 2013, Gundy was indicted on a charge that he had traveled from Pennsylvania to New York and stayed in New York without registering as a sex offender. He was convicted and sentenced to the time that he had served, plus five years of supervised release. On appeal, the U.S. Court of Appeals for the 2nd Circuit affirmed, and Gundy asked the Supreme Court to review his case. Notably, the justices declined to consider three questions presented in Gundy’s petition for review, which included whether he was required to register as a sex offender while he was still in custody and whether his case meets SORNA’s requirement that a sex offender who is required to register must cross state lines. But they agreed to take up the final question presented by his petition, which he says affects “hundreds of thousands of individuals”: whether the law improperly delegates to the U.S. attorney general authority to decide whether SORNA’s registration requirements should apply to sex offenders who were convicted before SORNA was passed. Only Congress, Gundy says, has authority to legislate; it can, to at least some extent, outsource this power to another branch, but if it does so it must provide “clear guidance” – which it has failed to do with SORNA.

In United States ex rel. Carter v. Halliburton, the justices asked the U.S. solicitor general to weigh in on the interpretation of the False Claims Act. But the justices did not act on some of the high-profile cases that were up for consideration at last week’s conference, including Hidalgo v. Arizona, a challenge to the constitutionality of the death penalty. The justices also took no action on Hargan v. Garza, in which the federal government has asked them to vacate a lower-court ruling that cleared the way for a pregnant teenager, held by federal immigration officials, to obtain an abortion. In both cases, the court has asked for the lower-court record, which could suggest that someone on the court is writing an opinion regarding the decision to deny review.

This post was originally published at Howe on the Court.

Posted in Knick v. Township of Scott, Pennsylvania, Gundy v. U.S., Featured, What's Happening Now

Recommended Citation: Amy Howe, Justices grant review in two new cases, SCOTUSblog (Mar. 5, 2018, 11:31 AM),