Court Grants Two Cockle-Printed Petitions and Four Others

On Monday, the Supreme Court granted six petitions for certiorari in five cases.  Two of those petitions were printed here at Cockle.

The first was the petition in Williamson v. Mazda Motor of America, Inc., No. 08-1314. The questions presented in that case are:

1. Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?

2. Under this Court’s recent ruling in Wyeth v. Levine, __ S. Ct. __, 2009 WL 529172 (2009), does a federal motor vehicle safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts impliedly preempt a state tort suit alleging that the manufacturer should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles?

The second Cockle-printed petition granted was the State of Arizona’s in Garriott v. Winn, No.  09-991. The question presented page in that petition states:

Under Arizona Revised Statutes (A.R.S.) Section 43-1089, individuals who contribute money to school tuition organizations (STOs) that provide scholarships to students wishing to attend private schools are entitled to an income tax credit. Respondents alleged that Section 1089’s neutral language and the Legislature’s stated secular purpose for enacting it were a pretense and that the tuition tax credit program had the primary effect of advancing religion because a majority of taxpayers who contributed to STOs chose to contribute to STOs that awarded scholarships to students attending religious schools.

The question presented is the following:

Did the court of appeals err in holding that if most taxpayers who contribute to STOs contribute to STOs that award scholarships to students attending religious schools, Section 1089 has the purpose and effect of advancing religion in violation of the Establishment Clause even though Section 1089 is a neutral program of private choice on its face and the State does nothing to influence the taxpayers or the STOs’ choice?  

The Court also granted petitions in Sossaman v. Texas, No. 08-1438; AT&T Mobility v. Concepcion, No. 09-893; Skinner v. Switzer, No. 09-9000; and Arizona Christian School Tuition Organization v. Winn, No. 09-987—the companion case to Garriott.

City of Reno v. Conn The Cert. Petition

After conducting research on decisions written by particular federal appellate judges that are later granted by the Court, I am of the belief that perhaps Supreme Court Rule 10 should officially be modified. While a conflict among the lower courts remains the prevailing reason why the Court grants cert, there are other certworthy factors not mentioned in the “Considerations Governing Review on Certiorari.”  Those factors include the following:  “Ninth Circuit,” “Opinion by Judge Reinhardt,” and “Dissent to Order by Chief Judge Kozinski.”  

The petition for writ of certiorari in City of Reno et al., v. Conn, presents all of the above.  In short, the lower court opinion—written by Ninth Circuit Judge Reinhardt—places (and arguably expands) 42 U.S.C. § 1983 liability on municipalities and law enforcement when they are confronted with the unenviable task of treating mentally ill detainees.  In doing so, the decision created circuit conflicts, and ultimately, a scorching dissent from the denial of rehearing en banc by Chief Judge Kozinski.

In requesting the Court’s review, the City of Reno petition emphasizes that the lower court opinion created circuit splits on two issues, including a 5-2 split on whether municipalities can be held liable for failing to train law enforcement on diagnosing suicidal detainees. The petition also argues that:

Both issues recur frequently, affecting well over a million law-enforcement officers and more than fourteen million arrests across the country each year.  The issues are also crucially important.  Judge Reinhardt’s opinion imposes novel, undefined, and potentially costly psychiatric-training duties on thousands of cities and towns throughout the nine states in the Ninth Circuit.   It obligates officers to make nuanced psychiatric diagnoses, even where (as here) medical professionals repeatedly screen a detainee for suicide risk.  Only this Court can resolve these conflicts and give needed, uniform guidance to cities and police departments across the country.

This case also has the benefit of timing because the Court, this term, has been increasingly receptive to cases involving immunity and especially immunity involving municipalities and/or law enforcement (i.e., Pottawattamie County v. McGhee, No. 08-1065, Los Angeles v. Humphries, 09-350, Connick v. Thompson, 09-571).

All of these factors lead to the strong likelihood of a cert grant in this case. 

The petition can be viewed here.  The Ninth Circuit decision and denial of rehearing en banc can be viewed here.

Topside Brief and Joint Appendix in Michigan v. Bryant

The Petitioner’s Brief  and Joint Appendix  in Michigan v. Bryant, No. 09-150, were filed on April 30th. At issue in Bryant, is whether statements made by a wounded citizen regarding the circumstances of a shooting are testimonial statements implicating the Sixth Amendment Confrontation Clause.

Topside Merits Brief in Los Angeles County v. Humphries

Today, the Petitioner’s merits brief was filed in Los Angeles County v. Humphries, No. 09-350.  The brief can be viewed here. The questions presented in Humphries are:

• Are claims for declaratory relief against a local public entity subject to the requirement of Monell v. Department of Social Services, 436 U.S. 658 (1978) that the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity as determined by the First, Second, Fourth and Eleventh Circuits, or are such claims exempt from Monell’s requirement as determined by the Ninth Circuit?
• May a plaintiff be a prevailing party under 42 U.S.C. §1988 for purposes of a fee award against a local public entity based upon a claim for declaratory relief where the plaintiff has not demonstrated that any constitutional violation was the result of a policy, custom or practice attributable to the public entity under Monell?
• May a plaintiff be a prevailing party on a claim for declaratory relief for purposes of a fee award under 42 U.S.C. §1988 where there is neither a formal order nor judgment granting declaratory relief, nor any other order altering the legal relationship between the parties in a way that directly benefits the plaintiff?

Humphries will be argued during the 2010 Term.

Arguing Importance When No Circuit Split Is Present

What happens when your petition for writ of certiorari does not contain an arguable claim of lower court conflict?  The absence of a split is challenging for any Supreme Court practitioner, given that the primary reason the Court grants cert is to resolve lower court conflicts.  While some petitioners attempt to create a conflict, the better practice is to emphasize other certworthy factors, including the importance of the question presented. 

The petition in Encarnacion, et al, v. Astrue, No. 09-631, provides an excellent example of this strategy.  The petition can be viewed here, the brief in opposition here, and the reply brief here.  [Note: the Encarnacion petition and reply brief were printed at Cockle] 

At issue in Encarnacion is whether the Social Security Commissioner’s policy for determining child disability complies with Congressional instructions to consider “throughout the disability determination process” the “combined effect of all of the individual’s impairments.”  42 U.S.C. § 1382c(a)(3)(G).  The petition argues that the Commissioner’s policy—failing to give weight to all of a child’s impairments when deciding disability status—flies in the face of the Court’s previous decision in Sullivan v. Zebley, 493 U.S. 521 (1990), and in contravention of the clear statutory language.  The petition, however, does not contend that the lower courts are divided on the issue.

In fact, the petition straightforwardly admits the absence of a circuit conflict. Petition, at 22 (“To be sure, in this class action, there is no conflict in the circuits, nor is one likely to develop”).  This is a unique strategy.  Recognizing that lower court conflicts drive the Court’s docket, Supreme Court practitioners usually attempt to manufacture a conflict through creative characterization and generalization, in an effort to garner the Court’s attention. I spoke with one of the attorneys involved and he said that they deliberately conceded the absence of a lower court conflict, because one did not arguably exist. Petitioners instead decided to emphasize the importance of the question. 

As the leading Supreme Court authority states, “[t]he importance of the issues involved in the case as to which review is sought is of major significance in determining whether the writ of certiorari will issue.” Gressman, E. et al., Supreme Court Practice, at 262 (9th ed. 2007).  There are many ways to convey the importance of an issue (i.e., the type of issue, whether the Court has previously addressed the issue, and the number of people affected by the issue).  But since no single consideration by itself is likely to convince the Court, counsel should “advance all possible reasons tending to demonstrate the importance of the issues….”  Supreme Court Practice, at 263.   The Encarnacion petition accomplishes this goal by advancing several reasons why the Court should grant cert despite no conflict.

The petitioners in Encarnacion first work the importance of the lower court’s opinion into the merits of the case, contending that the lower court decision directly conflicts with relevant Supreme Court precedent (i.e., Sullivan v. Zebley).  Pet. at 16. Next, petitioners argue, quite persuasively, that Supplemental Security Income (“SSI”) is a “critical resource” for families whose children suffer from serious disabilities and that if the lower court decision stands, children—who are not severely impaired in one area of functioning, but substantially impaired in many areas of functioning—will not be considered disabled and thus, not receive SSI.  Petitioners also argue a key point needed for any cert petition: why Court review is needed now. Because applicants for child-disability benefits generally cannot afford legal representation, if review is not granted in this case, petitioners maintain that the issue is likely to evade the Court’s review.  Pet. at 22. And the petition is punctuated with this final sentence:  “There is no reason to allow the decision below to stand, and Zebley to be dishonored, while thousands of disabled children are deprived of the benefits to which they are entitled.”  Pet. at 23. 

Rather than rehashing the same importance grounds raised in the petition, the reply brief brings forth further grounds for review.  Highlighting facts from individual petitioners’ cases, the reply brief contends that those “amply demonstrate the irrational impact of the challenged policy…”  Reply, at 10. Petitioners support this assertion by noting additional examples provided by Amici Curiae briefs filed in support of the petition.  The cert-stage briefing ends with counsel’s contention that if the petition is not granted “the issue may evade review indefinitely, and potentially thousands of poor children will be deprived of the complete, holistic assessment that Congress intended them to have.” 

To be sure, the task of arguing the importance of a question is less arduous when the topic is as compelling as child disability.  But not every petition (even those with compelling subject matter) argues importance as comprehensively as the Encarnacion petition.  Nor do petitions routinely concede the absence of a circuit conflict. The Encarnacion petition thus stands apart from the conventional approach and is a fine model for those presenting important questions, but no splits among the lower courts.    

The Encarnacion petition is set for Conference on April 2, 2010. 

Quon Topside Brief Filed

Today, the Petitioner’s Brief and Joint Appendix were filed in City of Ontario, et al. v. Quon, et al., No. 08-1332.  The Quon case involves the issue of whether the search of a government-issued text-messaging pager used by a SWAT member to send and receive hundreds of personal messages violates the Fourth Amendment right to unreasonable searches and seizures. The merits brief contends that the SWAT member had no “expectation of privacy” in the exchange of messages made through use of a government pager and that even if there was an expectation, the search in Quon was “reasonable.”

The Respondents’ Brief is due within 30 days unless an extension is granted.

The Court has not set a date for argument.

McDonald v. City of Chicago—The Reply Brief

Today, Cockle filed the Petitioner’s Reply Brief in McDonald v. City of Chicago, No. 08-1521.  In that brief, McDonald’s counsel of record, Alan Gura, once again calls on the Court to overrule The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), or in the alternative, hold that the Due Process Clause incorporates the Second Amendment right to bear arms.  The Reply Brief can be viewed here. 

While the Reply Brief highlights many of the same themes as the Petitioner’s Brief, it does shed light on a few issues previously unaddressed. Notably, the brief may be one of the first Supreme Court merits briefs to invoke the Court’s decision last week in Citizens United v. FEC, 558 U.S. __ (2010), No. 08-205. McDonald argues, by citing Justice Kennedy’s opinion in Citizens United, that where neither party defends a prior precedent, “stare decisis is diminished.” The brief also attacks Slaughterhouse on the ground that “decisions improperly limiting enjoyment of con­stitutional rights create no valid reliance interests.”  (Note: When looking to overrule prior cases, the Court often considers to what degree the country has relied on a decision.  The higher the reliance, the less likely a case will be overturned.)

A Google search is also at issue in the brief.  The City of Chicago had presented a computerized search of 19th Century newspapers, finding few articles declaring a publicly held belief that the Privileges and Immunities Clause covered the Bill of Rights. The City had argued that the absence of newspaper articles was conclusive regarding whether there existed an original public meaning of the Privileges and Immunities Clause that includes the right to bear arms.  Countering that argument, McDonald asserts that “[a] paper based on little more than a Google search should not be used against decades of detailed, disciplined scholarly work by some of the nation’s leading legal historians.”

One of the main counterpoints advanced by McDonald in reply was that federalism (and policy matters in general) cannot trump constitutional rights. McDonald maintains that the City’s “irrelevant political arguments” against applica­tion of the Second Amendment to the States failed “to accept that the decision to secure the right in our Constitution has already been made.”

McDonald is scheduled for argument on Tuesday, March 2, 2010, with a decision expected sometime before the end of the Term in late June.  

The Court Issues Two Opinions and Denies Review of Manuel Noriega’s Petition

In a flurry of action, the Supreme Court on Monday issued two opinions, granted certiorari in two cases, called for the views of the Solicitor General in two others, and denied a host of cert petitions, including that from former Panama dictator Manuel Noriega. 

The Court announced decisions in Hemi Group, LLC v. City of New York, No. 08-969 and Briscoe v. Virginia, No. 07-11191.  In Hemi, an unusual combination of Justices (Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg and Alito) held that since the City of New York could not establish lost tax revenue caused by a RICO violation, the City could not therefore state a valid RICO claim.  The opinion can be viewed here.

The Court in Briscoe issued a GVR order (i.e., granting the certiorari petition, vacating the lower court’s order, and remanding the case in light of an intervening development) after conducting oral argument.  The GVR order most likely represents what was an insufficient number of votes for overruling the Court’s controversial opinion last June in Melendez-Diaz v. Massachusetts, 557 U.S. __ (2009).  Justice Scalia lamented during oral arguments that the only reason certiorari had been granted in Briscoe was to reconsider the Melendez-Diaz ruling.  That ruling now appears safe.  The petitioner’s merits briefs (printed by Cockle) can be viewed here and here.  The Court’s opinion can be viewed here. 

 In Chase Bank USA v. McCoy, No. 09-329 and Providence Hospital v. Moses, No. 09-438, the Court called for the views of the Solicitor General.

 The Court also granted certiorari and consolidated for oral argument the petitions in Abbott v. United States, No. 09-479 and Gould v. United States, No. 09-7073.  Those cases involve the federal criminal statute making it a crime to use, carry or possess a firearm during a drug trafficking or violent crime. 

The Court declined review on several cases relisted from previous conferences. Among those petitions was the request for review filed by Manuel Noriega.  Noriega v. Pastrana, No. 09-35.  Notably, the denial of the Noriega petition drew a dissent from Justices Thomas and Scalia, arguing that the case presented issues of significant importance requiring the Court’s “guidance” in assisting the political branches to “discharge their responsibilities over detainee cases…” The dissent can be viewed here.

Christmas Week News

Legal blogs continue to buzz over the Court’s grant last week in City of Ontario v. Quon, (08-1332).  While Scotus Wiki added a new page for the case, both Nolo’s Employment Law Blog and Slate’s Double XX Blog discussed the case at length.  Last week, Orin Kerr at the Volokh Conspiracy noted that the Ninth Circuit’s opinion in Quon was written by a liberal panel and drew a heated dissent from the denial of rehearing en banc by a group of conservative judges.  “That one-two punch is hard for the Supreme Court to resist,” Kerr wrote. 

On Monday, Cockle Law Brief Printing Company printed the Petitioner’s Brief in Hamilton v. Lanning, (08-998).  The brief advocates a “mechanical” approach to calculating a debtors’ “projected disposable income” during Chapter 13 bankruptcy proceedings.  Such an approach, the brief argues, is “faithful to the language of the statute and the expressed intent of Congress.”  The Respondent’s Brief in Hamilton is due on January 22nd of next year. 

Adam Liptak at the New York Times reported on Monday that a new study suggests that there is a correlation between the type of employment taken by Supreme Court clerks after leaving the Court and the ideology of the Justice that hired them.  This article continues to merit a wide-range of response from legal bloggers, including posts from the Volokh Conspiracy, Cato Institute and the ABA Journal. 

Cockle Law Brief Printing Co. will be open until 12:00 PM Central Time on December 24th and December 31st, but will be closed on Christmas and New Year’s Day. 

Cockle Law Brief Printing would like to extend Happy Holidays to all our readers.

Does the Right to Bear Arms Apply to the States?

Yesterday, the Petitioner’s merits brief and joint appendix were filed in perhaps the most watched case of this young Supreme Court Term.  In McDonald v. City of Chicago, No. 08-1521, the Court will determine whether the Second Amendment right to bear arms is applicable against the states.  The case has drawn notable interest from both news media and the legal community.

The merits brief can be viewed here and the joint appendix here.

At issue in McDonald are two constitutional provisions—one well-documented, the other resting in obscurity.  The Due Process Clause is an established method for the Supreme Court to hold that a federal right limits state law.  Throughout the last sixty years, the Court has held that particular provisions of the Bill of Rights have been “incorporated” into the Due Process Clause of the Fourteenth Amendment. Indeed, almost the entire Bill of Rights, including the right to free speech, to a trial by jury, and to free expression of religion, has been incorporated.

The Court has had no previous opportunity to determine whether the Second Amendment is also incorporated into the Due Process Clause.  Before the Court’s decision last year in District of Columbia v. Heller, No. 07-290, the question of whether the Second Amendment conferred an individual right, was open.  Now that the question of individual rights has been answered affirmatively, the Court must next decide if the Second Amendment individual right to bear arms applies with equal vigor to state laws, such as Chicago’s ban against handgun possession.

Petitioner contends that the Second Amendment’s historical foundations and its treatment by the states conclusively establish its incorporation into the Due Process Clause.  For this reason, Petitioner asked the Court to reverse the Seventh Circuit’s decision.

Although Petitioner requested reversal based on the conventional method of due process, his primary argument rests on the obscure Privileges and Immunities Clause of the Fourteenth Amendment.   That provision was effectively rendered meaningless by the Court’s ruling in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)—the infamous decision which has long been called into question by legal scholars.

The McDonald petition argued in no uncertain terms that the Slaughter-House construction of the Privileges and Immunities Clause “was wrong the day it was decided and today stands indefensible.”   The merits brief continues with this line of reasoning, arguing that McDonald presents the Court with “a rare opportunity to correct a serious error, honor the Fourteenth Amendment’s true meaning, and bring a needed measure of clarity to [ ] civil-rights jurisprudence.” 

McDonald has yet to be set for argument.  The deadline for Amicus Curiae briefs supporting Petitioner is November 23, 2009.  The Respondent’s merits brief is set for filing on December 16, 2009. 

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