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A tip for appellate lawyers (UPDATED)

UPDATE 5:05 p.m. Arguing that “time is of the essence,” challengers to the Arizona election subsidy law on Tuesday afternoon sent the Court a new application, this time making it explicit that the challengers “will each file timely petitions for certiorari before the Supreme Court.”  The renewed application, to be considered by the Court after an overnight delivery of a version eligible for formal docketing, repeats in brief some of the prior arguments for temporary help from the Court.   The new application (thanks to Rick Hasen of Election Law blog for the alert and for assistance) can be read here.


Perhaps feeling a bit unappreciated, the Supreme Court on Tuesday gave lawyers a practice tip: if you want the Court to block a lower court ruling that may harm your client, you might want to mention — as part of your argument — that you plan to appeal it to the Justices.   It is not appropriate, the Court seemed to signal, to simply assume that the Justices know an appeal will be forthcoming.   The Court provided the tip in refusing, for now, to block the state of Arizona from starting to pass out public funds as campaign subsidies during the current state election campaign. The order the Court issued in McComish, et al., v. Bennett, et al. (application 09A1133) did not settle anything, even for the short term, about the constitutionality of Arizona’s scheme to subsidize state candidates who agree to have their campaigns financed with public money in order to make them independent of the influence of large political donors who may want something in return.   For the time being, the state plans to issue the first significant round of such subsidies on June 22; a federal judge’s order striking down the payments is on hold, under a temporary order of the Ninth Circuit Court.

The subsidies are strenuously opposed by a group of candidates who are running campaigns in Arizona using only private donations, in some cases their own money.  They argue that the subsidy scheme forces them to curtail their fund-raising and campaign spending in order to avoid triggering higher subsidies for their publicly financed opponents.  But in making their case to the Supreme Court in recent days, asking to prevent the payment of the subsidies this month, lawyers for the challengers never once informed the Court that they would be filing an appeal to test the constitutional issue.

The lawyers asked the Supreme Court for three types of protection: an order to stop the Circuit Court from putting into actual effect its May 21 ruling upholding the subsidy scheme, an order to the Ninth Circuit to lift a temporary order it issued in February postponing a federal judge’s decision striking down the scheme, and a conditional order for the state to put up a bond of nearly $2.2 million in case the Court were now willing to let the subsidy payments begin.

In neither the original application for such protection, nor in the reply brief, did the lawyers say they were going to bring the dispute fully to the Supreme Court in a petition for review (certiorari), although that might well have been implicit in such comments in the papers as the Court needed to act to protect its own jurisdiction. In denying them any relief on Tuesday, the Court said it was doing so “without prejudice” to their right to ask again “if the parties represent that they intend to file a timely petition for a writ of certiorari before this Court.”  The hint, of course, is that the Court might well be sympathetic to the idea of putting the subsidies scheme on hold, if it actually were going to be challenged before the Justices.  The order did not constitute a commitment to do so, however.  Even if the lawyers do (as they seem certain to) file a new application for temporary protection from the subsidy outlays, the Court retains the option of turning them down anew.

This marked the second time that the challengers had come to the Court for an order to block the subsidies.  They did so last winter, but the Court in February turned them down, saying they could come back once the Ninth Circuit had issued its ruling on the merits of the Arizona law.  That triggered the latest application, which the Court studied for a few days before turning it down Tuesday.

The Arizona order was issued Tuesday morning almost simultaneously with the batch of regular orders the Court had issued, based on actions it had taken at its private Conference last Thursday.

Granting review in one new case (to be argued and decided next Term), the Court agreed to resolve a 20-year dispute over whether federal law exempts medical students who work as residents in hospitals from federal payroll taxes. The Treasury has ruled that any worker whose normal work schedule is 40 hours a week or more cannot be exempted from payroll taxes as a “student,” even if the work involves educational training.  Medical residents typically work more than 40 hours a week, sometimes a good many more than that.

Since 1939, the federal law that requires both employers and employees to pay payroll taxes, based on wages paid, has included an exemption for students.  (The money raised by the payroll tax is used by the government to finance Social Security and Medicare benefits).  But the Treasury has been in a running battle with teaching hospitals over whether medical residents, who still are being educated, qualify for that exemption.  The issue is a significant one for both sides: the government has before it now more than 7,000 claims by hospitals for refunds of payroll taxes.  The taxes produce more than $700 million a year from medical residents alone.

The specific case, Mayo Foundation, et al., v. U.S. (09-837), involves two teaching hospitals that employ medical residents — the famed Mayo Clinic in Rochester, Minn., and the University of Minnesota.  That university has been feuding with the government over the issue since 1990.

Among several orders denying review of new cases, the Court turned aside a claim that federal law requires states which joined in settling nationwide lawsuits over the hazards of smoking go to arbitration over disputes involving enforcement of that settlement.  Among 49 jurisdictions that signed on to the deal, only the state of Montana has refused to arbitrate the issue of tobacco companies’ right to reduce their annual payments to the states under the 1998 settlement.  The Court denied review of several tobacco companies’ appeal in R.J. Reynolds, et al., v. Montana (09-911).

The Court also declined to hear a claim that it is unconstitutional for a local government to adopt a ban on sewage disposal in its area, if that is aimed at transporting of the waste within a single state (Los Angeles, et al., v. Kern County, et al., 09-1111); a request to reopen the issue of the constitutionality of state court enforcement of private agreements that discriminate — in this case, enforcement of a Jewish man’s will that denied any inheritance to grandchildren who married outside the Jewish faith (Trull v. Feinberg, 09-1011)., and a plea to order a new trial of a criminal case in Kentucky because the foreperson of the jury repeatedly contacted the media about the case as the trial unfolded (Basham v. U.S., 09-617).

Meanwhile, on Tuesday afternoon, Justice John Paul Stevens refused to protect one arm of the Indiana government from a demand by another arm of the state for access to the records of a now-deceased mental patient, for an investigation of whether the patient was neglected while in a state institution.  Stevens’ order (found here) denied the plea of the Indiana Family and Social Services Administration to block the effectiveness of a Seventh Circuit Court decision.  Stevens said his action was based upon the reasons given by Circuit Judge David Hamilton for refusing to stay the mandate in the case (Circuit docket 08-3183).

Judge Hamilton wrote that there was little risk of harm from giving one agency access to peer review records of the patient’s treatment, since the patient was now dead and, in any event, the records are to remain confidential.   The case (discussed in this post last Friday) raises the same issue of state sovereignty that the Court is now studying in another case, Virginia Office for Protection and Advocacy v. Reinhard (09-529).  The Court has not yet granted that case, but the U.S. government recently recommended that the Court grant review.