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Court grants seven cases

The Supreme Court on Friday agreed to rule on seven new cases, apparently filling out its argument calendar for the April sitting, the final hearing session of the Term.  The orders list is here.  Among the issues to be heard is a test of state power to restrict elected city officials’ right to vote on issues that might affect their close associates, and a test of state power to protect the confidentiality of the records of doctors’ prescription of drugs for their patients.  Two of the seven cases raised closely related criminal law issues, but apparently will be heard separately.

At the suggestion of the federal government, the Court granted review of an important securities fraud case, testing the proof needed when a class-action lawsuit is filed claiming financial loss based on a “fraud on the market” theory.  The case involved claims by a group of investment funds, retirement plans and individual investors against Halliburton Co. and its former president and CEO, David J. Lesar.

Here, in summary, are the issues in the seven new cases:

** The securities fraud case, Erica P. John Fund v. Halliburton (09-1403), raises the question of whether investors may pursue such a claim as a class action, if they cannot prove at the outset that any loss they suffered was traced directly to the company that misled the stock market about its securities.   The Court had asked for the federal government’s views, and the Solicitor General’s office recommended grant of review.

** The elected officials case, Nevada Commission on Ethics v. Carrigan (10-568), tests the constitutionality under the First Amendment of a state law that compels elected officials — in this case a city councilman — to avoid voting on policy matters if they have a conflict of interest.  The state Supreme Court struck down the most broadly worded restriction in the state “recusal” law in a case in which a member of a city council voted on a zoning matter involving a business client of the councilman’s campaign manager.  That state law does not apply to members of the state legislature, but clearly does apply to other elected officials at the state and local level.

** The prescription records case, Sorrell v. IMS Health Inc., et al. (10-779) is an appeal by Vermont state officials seeking to revive a state law that restricted commercial access to and uses of private medical data — here, information about brand-name drugs prescribed by doctors.  The Second  Circuit Court struck down that law under the First Amendment.  There is now a conflict among lower courts on the issue, and both sides in the Vermont case joined in urging the Court to resolve the dispute.

** In two cases, which involve a related issue but will be heard separately, the Court will be deciding whether an individual who rejects a plea offer from prosecutors because the lawyer advised that course has a claim for ineffective legal assistance if that advice was either flawed or produced a less favorable outcome than if the individual had gone to trial.  In agreeing to hear state officials’ appeals in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444), the Court told counsel in both to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?”  Presumably, the Court will hear the two cases in back-to-back arguments.

** In another criminal case, McNeill v. U.S. (10-5258), the Court will decide whether a conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal Armed Career Criminal Act, if the state law violated did not at the time of federal sentencing set a maximum prison term of at least ten years, but had done so at the time the crime was committed.  The federal government urged the Court not to hear the issue in a North Carolina case.

** In the final case granted review Friday, U.S. v. Jicarilla Apache Nation (10-382), the Court will decide whether the federal government has a right to deny an Indian tribe access to internal legal advice that government officials got from their attorneys about managing property for the tribe.  In this case, the tribe is suing the federal government, seeking some $300 million in damages, for allegedly mismanaging financial interests and funds which are held in trust for the tribe’s benefit.  The tribe is seeking access to attorney-client communications about the trust operation.  The case appears to turn on whether the so-called “fiduciary exception” to attorney-client privacy applies to the relationship between the federal government and Indian tribes, considered to be two sovereigns.  (Justice Elena Kagan took no part in this case.)

While the Court, in issuing new grants, did not specify when the cases will be heard, the Court’s calendar of arguments is already filled through the March sitting, and the fact that the grants were announced Friday rather than next Monday indicated that the Court expected that they would be ready for argument in the session that begins Monday, April 18 — the final argument sitting of the Term.  The Court already had three cases that were unscheduled but were likely to be heard in April.  With the new grants, ten cases will be available for that sitting.

Recommended Citation: Lyle Denniston, Court grants seven cases, SCOTUSblog (Jan. 7, 2011, 3:19 PM),