At its Conference on March 20, 2015, the Court will consider petitions seeking review of issues such as the legality of Wisconsin’s voter ID law, a court’s denial of a criminal defendant’s constitutional right to testify, and a “policy” or “custom” of Brady v. Maryland violations by the district attorney in Orleans Parish.

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.

14-803

Issue(s): (1) Whether a state’s voter ID law violates the Equal Protection Clause where, unlike in Crawford v. Marion County Election Board, the evidentiary record establishes that the law substantially burdens the voting rights of hundreds of thousands of the state’s voters, and that the law does not advance a legitimate state interest; and (2) whether a state’s voter ID law violates Section 2 of the Voting Rights Act where the law disproportionately burdens and abridges the voting rights of African-American and Latino voters compared to White voters.

14-779

Issue(s): Whether and to what extent false statements of fact, which are designed to deceive voters, are protected by the Free Speech Clause of the First Amendment.

14-723

Issue(s): Whether, under the Employee Retirement and Income Security Act of 1974 (ERISA), a lawsuit by an ERISA fiduciary against a participant to recover an alleged overpayment by the plan seeks “equitable relief” within the meaning of ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), if the fiduciary has not identified a particular fund that is in the participant's possession and control at the time the fiduciary asserts its claim.

14-708

Issue(s): (1) Whether the Fifth Circuit erred in refusing to find a triable issue as to whether there is a “policy” or “custom” when there was significant evidence of Brady v. Maryland violations by the Orleans Parish District Attorney in this and many other cases; and (2) whether proving municipal policy or custom requires proving similar unconstitutional acts that occurred before the events giving rise to the lawsuit or whether proof of a policy or custom can be based, in part, on similar unconstitutional acts that occurred following the events involving these plaintiffs.

14-694

Issue(s): Whether, where, as part of a state-directed procurement, the resulting contract between local utilities and a power plant developer provides for a payment to the power plant developer based on the differential between the developer's competitive bid to build a new power plant and the amount the developer receives from capacity sales in the auction supervised by the Federal Energy Regulatory Commission, and where the contract does not involve any actual sale of capacity, the contract is “field preempted” as an attempt by the state to set interstate electric rates. CVSG: 09/16/2015.

14-634

Issue(s): Whether, where, as a result of a state-directed procurement, the contract price to build and operate a power plant is the developer's bid price, and may result in payments beyond what the developer earns selling the plant's capacity in the Federal Energy Regulatory Commission (FERC)-supervised auction, the program is “field preempted” as a state's attempt to set interstate wholesale rates. CVSG: 09/16/2015.

14-623

Issue(s): (1) Whether, where, as a result of a state-directed procurement, the contract price to build and operate a power plant is the developer’s bid price, and may result in payments beyond what the developer earns selling the plant’s capacity in the auction supervised by the Federal Energy Regulatory Commission (FERC) the program is “field preempted” as a state’s attempt to set interstate wholesale rates; and (2) whether a state-directed contract to support construction of a power plant is “conflict preempted” because its long-term pricing structure provides incentives different from the incentives provided by prices generated in the FERC-supervised yearly capacity auction. CVSG: 09/16/2015.

14-614

Issue(s): (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether the Federal Energy Regulatory Commission’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. CVSG: 09/16/2015.

14-688

Issue(s): (1) Whether the Federal Mine Safety and Health Act’s definition of “the work of preparing coal” includes purchasers of processed and prepared coal; and (2) whether the Court of Appeals should have remanded to the Federal Mine Safety and Health Review Commission to consider the evidence that the statute had been inconsistently applied.

14-687

Issue(s): Whether Section 10(b) of the Securities Exchange Act and Rule 10b-5 impose a duty on a corporation to “update” prior truthful statements.

14-531

Issue(s): Whether this Court’s decision in Martinez v. Ryan provides a basis to allow a federal habeas petitioner to reopen the judgment, years after finality, under Federal Rule of Civil Procedure 60(b).

14-493

Issue(s): (1) Whether a jurisdictional determination, that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties, is subject to judicial review under the Administrative Procedure Act; and (2) whether a due process claim against an agency action is subject to the finality requirement of the Administrative Procedure Act.

13-1512

Issue(s): (1) Whether and under what circumstances the Eighth Amendment authorizes a district court to impose a sentence less than the statutory mandatory minimum; and (2) whether a criminal defendant's waiver of appeal rights made in an agreement to resolve a case prohibits an appeal by the government.

 

Relists

14-618

Issue(s): (1) Whether the Michigan courts' decision not to extend United States v. Cronic to cover counsel's brief absence from trial was an “extreme malfunction” entitling the petitioner to habeas relief; and (2) whether the Michigan courts reasonably determined that Donald had not shown Strickland v. Washington prejudice flowing from his counsel's brief absence in a multi-defendant case during the taking of evidence that did not inculpate his client.

14-593

Issue(s): Whether the state of North Carolina performs an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen's status as a recidivist sex offender and where there is no finding that he is a threat to society.

14-555

Issue(s): Whether a trial court's complete denial of a criminal defendant's constitutional right to testify is amenable to harmless-error analysis.

14-462
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issue(s): Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

14-452

Issue(s): Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.

14-354

Issue(s): (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause.

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.

14-280

Issue(s): (1) Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison; and (2) whether the Supreme Court has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to this Court’s decision in Miller v. Alabama.

 

 

Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of March 20, SCOTUSblog (Mar. 19, 2015, 11:05 AM), https://www.scotusblog.com/2015/03/petitions-to-watch-conference-of-march-20/