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Thursday round-up

Yesterday the court heard argument in Trinity Lutheran Church of Columbia, Inc. v. Comer, a constitutional challenge to Missouri’s exclusion of a church-run preschool from a state program that provides grants to nonprofits to resurface playgrounds. Amy Howe analyzes the argument for this blog. In The Wall Street Journal, Jess Bravin reports that “Supreme Court justices across the ideological spectrum on Wednesday questioned Missouri’s exclusion of a church-run school from a state playground-funding program that has only been available to secular nonprofit institutions.” At NPR, Nina Totenberg notes that although “even some of the court’s liberals signaled that they are concerned by the grant denial,” “neither side had an easy time of it,” and concludes that “the quest for the Supreme Court may be how narrowly or broadly it writes its opinion.” Additional coverage comes from Robert Barnes in The Washington Post, Mark Walsh in Education Week, Steven Mazie in The Economist, Adam Liptak in The New York Times, and Lyle Denniston at his eponymous blog, who notes that “any thought that the case might simply go away — stirred up by recent developments in Missouri, where the case originated — seemed wholly fanciful.” At the Constitutional Law Prof Blog, Ruthann Robson discusses the argument.

Commentary on Trinity Lutheran comes from David Cortman in an op-ed in USA Today, who argues that when “the funding at issue is for a secular use (and installing a safer floor on a playground is undeniably a secular use), the state’s efforts to wall off religious groups serves no purpose other than to discriminate against people of faith,” and from James Gottry in the Federalist, who maintains that “[s]crap tire surface has nothing to do with religion, and everything to do with children’s safety.” In a column in The Washington Post, Dana Milbank offers another view, calling the case “a manufactured controversy, cooked up by conservative interest groups that are hoping to chip away at constitutional provisions in 39 states restricting taxpayer money from going to churches.”

Yesterday the court also issued two opinions. In Nelson v. Colorado, the justices held 7-1 that a state cannot require a defendant whose conviction is invalidated to prove actual innocence before recovering fines and fees imposed as a consequence of the conviction. In The Wall Street Journal, Jess Bravin reports on the majority’s ruling that “reversal of a conviction—even for procedural reasons—restores the ‘presumption of innocence’ to the defendant, and therefore the state no longer has the right to keep money the convicted paid upon sentencing.” Daniel Fisher discusses the decision in Forbes, noting that the Justice Clarence Thomas “wrote a dissent raising deep questions about the rights of citizens versus the government and the reach of the 14th Amendment.” Ruthann Robson analyzes the decision at the Constitutional Law Prof Blog. In Manrique v. United States, the court ruled 6-2 yesterday that in a case involving deferred restitution, a defendant must file a notice of appeal from the restitution order in order to challenge it. Steve Vladeck analyzes the opinion for this blog.

On Tuesday, the court heard argument in Kokesh v. Securities and Exchange Commission, which asks whether a federal statute of limitations on civil penalties and forfeitures applies to disgorgements. Theresa Gabaldon has this blog’s argument analysis. Tuesday’s second argument was in Henson v. Santander Consumer USA, Inc., in which the justices will decide whether the Fair Debt Collection Practices Act applies to debt buyers. Ronald Mann analyzes the argument for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] At Reuters, Andrew Chung reports that the court “appeared skeptical of widening the scope of who can be subject to a federal law targeting debt collectors’ abusive practices by including those who buy debt, sometimes for pennies on the dollar.” Additional coverage of the argument in Henson comes from Lydia Wheeler in The Hill.

At his eponymous blog, Ross Runkel discusses the court’s decision on Tuesday in Coventry Health Care of Missouri v. Nevils, in which the justices held that a federal law governing employee benefits pre-empts state laws barring subrogation and reimbursement. Another look at the decision comes from Lisa Soronen at the National Conference of State Legislatures Blog, who notes that the “court did not reach the question of whether it should defer to the agency’s interpretation of FEHBA’s preemption clause because it completely ignored the agency’s interpretation, instead deciding the meaning of the statute looking only at its ‘text, context, and purpose.’”

In The Atlantic, Garrett Epps argues that “the cases of two Arkansas inmates, Don William Davis and Bruce Earl Ward, sentenced to death by courts in that state” have raised the stakes in McWilliams v. Dunn, a case to be argued next week about whether a capital defendant whose mental health is at issue is entitled to an independent psychiatrist to assist with his defense; he points out that the Arkansas inmates have raised the same issue and that on Monday “the Arkansas Supreme Court ordered the executions stayed pending the resolution of McWilliams.” Another look at McWilliams comes from Robert Johnson at ACSblog, who maintains that an “independent mental health expert would have changed what the court heard about Mr. McWilliams.”


  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and David McDonald urge the court to review a takings-clause challenge to the city of West Hollywood’s attempt “to condition issuance of land-use permits on landowners’ surrendering property rights the government would otherwise have had to pay for” by enacting “a zoning ordinance that requires developers who build multi-unit housing to either (1) sell or rent a percentage of that housing at below-market prices or (2) pay an ‘in lieu’ fee that the city calculates using a formula created by statute.”
  • At Reuters, Alison Frankel weighs in on Monday’s argument in California Public Employees’ Retirement System v. ANZ Securities, Inc., which involves the rules for timely filing of securities class actions, observing that “Chief Justice Roberts could well be the swing vote to extend time limits for class members who want to sue on their own” and that “if the chief justice sides with the liberal wing to preserve plaintiffs’ rights, we may have to start to revise conventional wisdom about the Roberts Court.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Apr. 20, 2017, 7:18 AM),