At its Conference on January 9, 2015, the Court will consider petitions seeking review of issues such as state bans on same-sex marriage, proof of intent in a constructive discharge case, personal jurisdiction to award a no-contact order, and the presumption of judicial vindictiveness under North Carolina v. Pearce.

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.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

14-596

Issue(s): Whether a state’s constitutional and statutory bans denying same-sex couples the freedom to marry and recognition of their marriages validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.

14-574

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-571

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-562

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-556

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-518

Issue(s): (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in Virginia Congressional District 3, where there is no dispute that politics explains the enacted plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly's political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the court below's finding of a Shaw v. Reno violation was based on clearly erroneous fact-finding; and (4) whether the majority erred in holding that strict scrutiny requires a legislature to adopt the least restrictive means possible for complying with the Voting Rights Act, instead of a redistricting plan that substantially addresses such compliance.

14-481

Issue(s): Whether, where a Chapter 11 debtor’s plan of reorganization hinges on the ability to enforce releases and injunctions in favor of nondebtors, a court may reject such releases and injunctions based on its concern over whether the plan makes distributions to non-creditors, here donors to charitable Donor Advised Funds.

14-460

Issue(s): (1) Whether, after this Court's decision in New York v. United States, plaintiffs’ claims that Colorado's government is not republican in form remain non-justiciable political questions; and (2) whether a minority of legislators have standing to challenge a law that allegedly dilutes their power to legislate on a particular subject.

14-435

Issue(s): Whether, under the Due Process Clause, a state court must have personal jurisdiction over an assailant to award a no-contact order, valid only within that state, to a victim of abuse who is domiciled in the state.

14-410

Issue(s): Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way. CVSG: 5/26/2015.

14-404

Issue(s): (1) Whether traditional property rights are among those fundamental rights and liberties subject to the substantive protections of due process, per Lingle v. Chevron U.S.A., Inc., Nectow v. City of Cambridge, and Village of Euclid v. Ambler Realty Co.; and (2) whether a regulatory restriction on the right to use one's property “must substantially advance a legitimate state interest” to satisfy the substantive requirement of due process, per Lingle, Nectow, and Euclid.

14-402
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.

Issue(s): (1) Whether the Secretary of the Interior, when concluding that a federal agency action will jeopardize a species listed as threatened or endangered under the Endangered Species Act, must address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternatives,” including the effects of the proposed alternatives on third parties; (2) whether the Secretary may disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion; and (3) whether, once the Secretary’s consultation is triggered by some discretion in operating a water project, the Secretary may apply the no-jeopardy mandate of Section 7(a)(2) to actions involved in water project operations that are compelled by specific legal obligations.

14-377

Issue(s): (1) Whether the United States Fish and Wildlife Service is obligated, under the Endangered Species Act, to demonstrate how a reasonable and prudent alternative to any federal agency action that is likely to jeopardize the continued existence of a protected species or adversely modify its critical habitat is economically feasible; if so, whether it can ignore the devastating impacts on the human community caused by the alternative's implementation, as the Ninth Circuit held below in conflict with the Fourth Circuit; (2) whether and to what extent (if any) the Service's interpretation of its own regulation defining “reasonable and prudent alternative” – an interpretation that dispenses with the obligation to explain or provide evidence of the alternative's economic feasibility – is entitled to deference; and (3) whether the decision of this Court in Tennessee Valley Authority v. Hill – which interpreted the Endangered Species Act prior to Congress’s addition of the “reasonable and prudent alternative” framework – still requires federal agencies to protect species and their habitat “whatever the cost.”

14-391

Issue(s): (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account; and (2) whether the First Amendment forbids a government from restricting political speech based on the disclosure interest – an interest in providing the electorate with information about the sources of election-related spending – including when a more narrowly tailored remedy is available.

14-380

Issue(s): (1) Whether Vermont laws requiring a non-profit issue-advocacy and lobby group that is not under the control of a candidate, and whose major purpose is not the election or nomination of candidates to be a political committee if it receives $1000 in contributions or makes $1000 in expenditures “in any two-year election cycle for the purpose of supporting or opposing one or more candidates [or] influencing an election” are unconstitutional under the First and Fourteenth Amendments; (2) whether Vermont’s electioneering-communication and mass-media-activities laws are unconstitutional under the First and Fourteenth Amendments; (3) whether Vermont law setting a $100 threshold for political committees for reporting contributions is unconstitutional under the First and Fourteenth Amendments; and (4) whether Vermont’s political committee contribution limit as applied to political committees that make only independent expenditures and do not make contributions to candidates is unconstitutional as applied to independent-expenditure-only groups under the First and Fourteenth Amendments.

14-378
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): Whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

14-360

Issue(s): (1) Whether a convicted offender has a clearly established constitutional right – sufficient to defeat qualified immunity – to separate judicial pronouncement of mandatory post-release supervision; and (2) whether, absent a definitive ruling from this Court, a federal court of appeals’ habeas ruling could clearly establish such a right without regard to contrary rulings by state courts of coordinate jurisdiction.

14-355

Issue(s): (1) Whether, in a constructive discharge case, the plaintiff must also prove, in addition to proving that discrimination created conditions so intolerable that a reasonable person would have felt compelled to resign, that the employer acted with the intent of forcing the plaintiff to resign; and (2) whether, in a constructive discharge case, the plaintiff must also prove that before resigning he or she complained sufficiently to the employer about the discrimination.

14-351

Issue(s): Whether sovereign immunity bars an American Indian tribe from seeking Ex parte Young relief from the unconstitutional enforcement of a state tax scheme merely because that relief might require refunds for taxes unlawfully collected in the future.

14-341

Issue(s): Whether an employee’s waiver in an arbitration agreement of a collective or “representative action” under the California Private Attorneys General Act, Cal. Labor Code § 2698 et seq., is so distinguishable from a “class action” waiver that it is immune from the otherwise preemptive effect of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., as held by this Court in AT&T Mobility v. Concepcion.

14-328

Issue(s): (1) Whether prison officials sued under 42 U.S.C. § 1983 for violating the Eighth Amendment may evade a finding of deliberate indifference by raising the defense that state-imposed budgetary constraints prevented the provision of constitutionally adequate medical care; and (2) whether the Eighth Amendment supports a distinction between the subjective element required for a finding of deliberate indifference in a claim for injunctive relief, and that required for an award of damages.

14-310
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.

Issue(s): Whether, having invalidated the only mechanism the IRS had developed for pursuing refunds of long distance telephone excise taxes unlawfully exacted from individuals, corporations, and non-profit entities between February 28, 2003 and July 31, 2006, the district court was nevertheless precluded by this Court's decision in Norton v. Southern Utah Wilderness Alliance from directing the IRS to provide by properly adopted regulation for a workable refund protocol applicable to those taxes.

14-292

Issue(s): (1) Whether the former Texas special issues for death penalty sentencing do provide – as the Texas Court of Criminal Appeals held – or do not provide – as the Fifth Circuit has held – an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character, such that failure to provide a separate question violates the Eighth and Fourteenth Amendments under this Court’s jurisprudence in Penry v. Lynaugh and Penry v. Johnson; (2) whether a conviction aided by the prosecution's failure to produce evidence that contradicted its theory and showed that the evidence it did rely upon and the resulting jury arguments were false violates the Due Process Clauses of the Fifth and Fourteenth Amendments under this Court's Brady v. Maryland jurisprudence; and (3) whether executing a defendant who has already served more than thirty years on death row while exercising his legal rights in a non-abusive manner serves any penological purpose and amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

14-275

Issue(s): (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm'n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

14-271

Issue(s): Whether a reviewing court may presume that a trial judge acted “vindictively” in giving a defendant a higher sentence after resentencing, when no higher court had vacated the trial judge's original sentence.

14-220

Issue(s): Whether a court can pivot liability for a priest's failure to report certain communications to public authorities on the court's own determination of whether those communications constitute “confession per se,” or whether it must respect the church's own view that such communications are confessional and absolutely protected from disclosure by the priest on penalty of automatic excommunication.

14-185

Issue(s): Whether the Fifth Circuit erred in this case in holding that it has no jurisdiction to review petitioner's request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).

14-171

Issue(s): Whether a defendant receives ineffective assistance of counsel under the Sixth Amendment when his attorney fails to advise him that the offense to which he is pleading guilty will require him to register as a sex offender.

14-165

Issue(s): Whether, when the Federal Sentencing Guidelines calculate a person's offense level based on prior convictions that are expressly excluded under the relevant federal statute, the statute or the Guidelines control.

13-1559

Issue(s): (1) Whether, as the United States implicitly conceded below, the Metropolitan Washington Airports Authority (MWAA) exercises sufficient federal power to mandate separation-of-powers scrutiny for purposes of a suit seeking injunctive relief and invoking the Little Tucker Act to seek monetary relief; and (2) whether the Metropolitan Washington Airports Act of 1986, 49 U.S.C. §§ 49101 et seq., which transferred to MWAA all of the federal government's “rights, liabilities, and obligations” concerning, inter alia, Dulles Airport and its “access highways and other related facilities,” violates the separation of powers, including the Executive Vesting, Appointments, and Take Care Clauses of Article II, by depriving the president of control over MWAA, an entity exercising – as the United States admits – executive branch functions pursuant to federal law. CVSG: 05/22/2015.

Relists

14-200
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.

Issue(s): Whether the Board of Governors of the Federal Reserve System’s regulation establishing a maximum allowable debit card interchange fee, 12 C.F.R. § 235.3, unlawfully permits banks to recover costs forbidden by the governing statute, 15 U.S.C. § 1693o-2(a)(4)(B).

13-1516

Issue(s): Whether it is an “adverse employment action” for a discrimination claim, or a “materially adverse action” for a retaliation claim, when an employer grants an employee’s request for a job transfer.

 

Posted in Cases in the Pipeline

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of January 9, SCOTUSblog (Jan. 7, 2015, 1:52 PM), https://www.scotusblog.com/2015/01/petitions-to-watch-conference-of-january-9/