At its Conference on May 28, 2015, the Court will consider petitions seeking review of issues such as qualified immunity as applied to private entities, the admissibility of autopsy reports under the Confrontation Clause, and the constitutionality of the University of Texas at Austin’s consideration of race in its undergraduate admissions process.

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.

14-1146

Issue(s): (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

14-1124

Issue(s): Whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.

14-1123

Issue(s): Whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.

14-1028

Issue(s): (1) Whether, when the filing of an Equal Employment Opportunity Commission (EEOC) charge of retaliation prompts a new retaliatory act, a plaintiff must file a second EEOC charge in order to judicially pursue the post-charge retaliation; and (2) whether, where the claimant reports post-charge retaliation to the EEOC, the employer defends the post-charge retaliatory act in its position statement to the EEOC, and the EEOC investigates and makes an express final determination regarding the post-charge retaliation, the post-charge retaliatory act has been administratively exhausted.

14-1008

Issue(s): Whether an autopsy report created as part of a homicide investigation, and asserting that the death was caused by homicide, is “testimonial” under the Confrontation Clause framework established in Crawford v. Washington.

14-954

Issue(s): (1) Whether the Sixth Circuit correctly held, in an acknowledged split with other circuits, that private entities are categorically ineligible to claim qualified immunity; and (2) whether the Sixth Circuit erred in denying individual McKamey Animal Care and Adoption Center employees Karen Walsh and Paula Hurn qualified immunity.

14-740
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.

Issue(s): Whether the good faith exception to the exclusionary rule applies to a search warrant that is itself the fruit of the poisonous tree.

Relists

14-990

Issue(s): Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).

14-981

Issue(s): Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

14-939

Issue(s): (1) Whether the Third Circuit erred in holding that 42 U.S.C. § 1983 authorizes the imposition of supervisory liability on state officials for a subordinate’s alleged constitutional violation; and (2) whether the Third Circuit erred in holding that there is a clearly established right under the Eighth Amendment to the “proper implementation of adequate suicide prevention protocols.”

14-825

Issue(s): (1) Whether the Ninth Circuit erred in holding, contrary to this Court's decision in Demore v. Kim, that under United States v. Salerno, a denial of bail is permissible “only” after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail such as Arizona's Proposition 100 and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states (and perhaps even calling into question categorical bans on bail in capital cases that exist in an additional twenty-two states); (2) whether, when adopting a categorical ban on bail for illegal aliens charged with serious felonies, a state may rely on logical assumptions, testimonial evidence of front-line prosecutors, and other anecdotal evidence that is in conformity with the empirical evidence of heightened flight risk by those unlawfully present in this country contained in studies conducted elsewhere, similar to what this Court has approved in analogous contexts, see City of Renton v. Playtime Theaters, Inc., or whether the state must conduct its own empirical analysis that is both jurisdiction- and category-specific in order to meet the requirements of Due Process; and (3) whether the Ninth Circuit erred in holding that Proposition 100 was facially unconstitutional, contrary to Salerno's requirement that a statute is facially invalid only if “no set of circumstances exists under which the Act would be valid,” because among those categorically denied bail by Arizona’s Proposition, 100 are individuals charged with capital crimes, whom the Ninth Circuit recognized could categorically be denied bail.

14-704

Issue(s): Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia's invalidated effort to do the same.

14-631

Issue(s): Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

14-419

Issue(s): Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

14-395

Issue(s): Whether the Fourth Circuit contravened 28 U.S.C. § 2254(d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied "clearly established" law when they held that third-party religious discussions with jurors did not concern "the matter[s] pending before the jury."

 

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Recommended Citation: Maureen Johnston, Petitions to watch | Conference of May 28, SCOTUSblog (May. 28, 2015, 1:45 PM), https://www.scotusblog.com/2015/05/petitions-to-watch-conference-of-may-28/