SCOTUScast

On February 28, 2018, the Supreme Court heard argument in Minnesota Voters Alliance v. Mansky, a case involving a Minnesota statute that broadly bans all political apparel at the polling place. Minnesota Statute § 211B.11 prohibits voters from wearing a “political badge, political button, or other political insignia… at or about the polling place on primary or election day.” State election officials indicated that “political” apparel included “issue oriented material designed to influence or impact voting” or “material promoting a group with recognizable political views.” If a person arrived at a polling place wearing a political item, the election judges were instructed to ask the individual to remove or cover the item. If the individual refused to comply he or she would still be allowed to vote, but the person’s name and address would be recorded for a potential misdemeanor prosecution. An association of various Minnesota political groups known as Election Integrity Watch (EIW) sued the Secretary of State and county election officials in federal district court, alleging that the statute was invalid--both facially and as-applied--under the First Amendment, and violated the Fourteenth Amendment’s Equal Protection Clause due to selective enforcement. Although the district court initially dismissed all claims, the U.S. Court of Appeals for the Eighth Circuit reversed that judgment with respect to EIW’s as-applied First Amendment claim, and remanded the case. On remand, the district court again ruled against EIW, granting summary judgment in favor of the defendants. On a second appeal, the Eighth Circuit affirmed the district court’s judgment--but the United States Supreme Court thereafter granted certiorari to determine whether Minnesota Statute Section 211B.11 is facially overbroad under the First Amendment.To discuss the case, we have Timothy Sandefur, Vice President for Litigation at the Goldwater Institute. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On March 19, 2018, the Supreme Court heard argument in Sveen v. Melin, a case involving the relationship between Minnesota’s revocation-upon-divorce statute and the U.S. Constitution’s “Contracts clause,” which declares that no state may pass a law “impairing the Obligation of Contracts.”In 2002, Minnesota amended its probate code to incorporate life insurance beneficiary designations into its revocation-upon-divorce statute. Mark Sveen purchased a life insurance policy in 1997, months before marrying Kaye Melin, who Sveen designated as the primary beneficiary on the policy. His two adult children, Ashley and Antone Sveen, were listed as contingent beneficiaries. Melin and Sveen divorced in 2007, but Sveen never removed Melin as the primary beneficiary of his life insurance policy. Both Melin and Sveen’s adult children sought to claim the insurance proceeds. In light of Minnesota’s extension of the revocation-upon-divorce statute to life insurance policies, Sveen’s insurance company sought clarification in federal district court regarding whether Melin should still be considered the primary beneficiary. The district court granted summary judgment in favor of the Sveens, applying the revocation-upon-divorce statute retroactively to remove Melin as a beneficiary. The U.S. Court of Appeals for the Eight Circuit reversed that judgment, however, reasoning that retroactive application of the statute in these circumstances would violate the Contracts clause. The Supreme Court thereafter granted certiorari to consider that core issue: whether the application of a revocation-upon-divorce statute to a contract signed before the statute’s enactment violates the contracts clause. To discuss the case, we have Prof. James Ely, Professor of Law Emeritus at Vanderbilt University Law School. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On February 27, 2018, the Supreme Court heard argument in Lozman v. City of Riviera Beach, Florida, a case involving a First Amendment retaliatory arrest claim. Fane Lozman moved to Riviera Beach, Florida in 2006, where he lived on a floating home in the Riviera Beach Marina. Shorty after moving to Riviera Beach, Lozman learned of the City’s new redevelopment plan for the Marina, which, by using eminent domain, sought to revitalize the waterfront. Lozman, who opposed this plan, became known as an “outspoken critic.” During the finalization of the redevelopment plan, the state legislature passed a bill prohibiting the use of eminent domain for private development; however, in order to push through the plan, the Riviera Beach City Council held a special emergency meeting the day before the Governor signed the bill into law. In response, Lozman filed suit against the City in June 2006. At a City Council regular public session in November 2006, Lozman was granted permission to speak during the “non-agenda” public comments portion of the meeting. Lozman’s comments were interrupted by a member of the City Council, who, after a quick interchange with Lozman, called a city police officer to dismiss Lozman from the podium. Lozman refused to be seated without finishing his comments, and the police officer warned him that he would be arrested if he did not comply. Lozman continued his comments, was arrested, and was charged with disorderly conduct and resisting arrest without violence. These charges were later dismissed.In 2008, Lozman filed suit in district court against the City of Riviera Beach, arguing that his arrest had constituted unlawful retaliation by the City because of Lozman’s earlier opposition to the redevelopment plan. A jury found in favor of the City, however, and the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. The jury’s determination that the arrest had been supported by probable cause, the court concluded, defeated Lozman’s First Amendment retaliatory arrest claim as a matter of law. The federal circuit courts of appeals have divided on that issue, however, and the Supreme Court subsequently granted certiorari to address whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.To discuss the case, we have Lisa Soronen, Executive Director of the State & Local Legal Center.

On February 21, 2018, the Supreme Court decided Digital Realty Trust v. Somers. Among other things, the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) endeavors to protect “whistleblowers,” who are defined as persons who provide “information relating to a violation of the securities to the [U.S. Securities and Exchange] Commission.” Employers are liable for discharging, harassing, or otherwise discriminating against a whistleblower “because of any lawful act done by the whistleblower” with respect to (1) “providing information to the Commission in accordance with [securities laws],” (2) “initiating, testifying in, or assisting in any investigation or … action of the Commission based upon” information provided to the Commission in accordance with securities laws, or (3) “making disclosures that are required or protected under” various statutes and regulations.In 2014, then-Vice President of Digital Realty Trust, Inc. Paul Somers reported to his senior management that he suspected securities-law violations by the company. He was subsequently terminated. Prior to his termination, Somers had expressed his concerns internally only and not to the Securities and Exchange Commission. He sued Digital Realty Trust in federal district court, alleging unlawful whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss the case, arguing that Somers did not qualify as a whistleblower because he had not reported his suspicions to the Commission. The district court rejected that argument and a divided panel of the U.S. Court of Appeals for the Ninth Circuit affirmed, concluding that whistleblower protection can extend to persons who have not actually reported suspected violations to the Commission. This decision aggravated a split in the federal circuit courts of appeals on the issue, and the Supreme Court granted certiorari to resolve the conflict.By a vote of 9-0 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Ginsburg, the Court held that Dodd-Frank’s anti-retaliation whistleblower protection does not extend to an individual who has not reported a violation of securities laws to the Securities and Exchange Commission. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Sotomayor filed a concurring opinion, which was joined by Justice Breyer. Justice Thomas filed an opinion concurring in part and concurring in the judgment, which was joined by Justices Alito and Gorsuch. To discuss the case, we have Todd Braunstein, Global Head of Legal Investigations at Willis Towers Watson.

On January 10, 2018, the Supreme Court heard argument in Husted v. A. Philip Randolph Institute, a case involving a dispute over the process for removing inactive voters from voter registration lists in the State of Ohio.The National Voters Regulation Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) require that States maintain their lists of registered voters in such a way as to ensure proper removal of individuals no longer eligible to vote for certain reasons, such as a felony conviction. In addition, the State of Ohio has undertaken steps to ensure inactive registrants are still living at the address at which they are registered to vote. The principal way Ohio does this is by comparing names and addresses contained in its own voter registration database to the National Change of Address (NCOA) database generated from U.S. Postal Service data. Ohio’s Secretary of State then provides each county’s Board of Elections (BOE) with a list of registered voters who appear to have moved. The BOE thereafter sends each of these voters a postage-prepaid forwardable notice on which the voter must indicate whether he or she still lives at the address of registration. Recipients of this notice are subsequently removed from the voter registration list if they (1) do not respond to the confirmation notice or update their registration, and, (2) do not subsequently vote during a period of four consecutive years that includes two federal elections. Ohio has also implemented a “Supplemental Process,” however. Under this process each BOE compiles a list of voters who have not engaged in “voter activity” for the past two years (meaning filing a change of address form with a state agency, casting an absentee ballot, voting in person on election day, or casting a provisional ballot). The BOE sends these registrants a confirmation notice similar to the one used in the NCOA process. Voters sent a confirmation notice are removed from the rolls if they subsequently fail to vote for four years and fail either to respond to the confirmation notice or re-register. The A. Philip Randolph Institute and other affiliates sued Ohio Secretary of State Jon Husted in federal district court, alleging that Ohio’s Supplemental Process violated the NVRA and HAVA, and seeking an injunction reinstating voters removed from the state registry under the Supplemental Process. Although the Secretary amended the confirmation notice format during the course of the litigation, neither the original version nor the revised version attempts to inform recipients who have moved how properly to register to vote in their new district. The district court denied relief and gave judgment in favor of the Secretary. The U.S. Court of Appeals for the Sixth Circuit, however, reversed that judgment and remanded the case for further proceedings. The Supreme Court then granted certiorari to address whether Ohio’s Supplemental Process runs afoul of NVRA and HAVA.To discuss the case, we have Michael Morley, Assistant Professor of Law at Barry University School of Law.

On January 17, 2018, the Supreme Court heard oral argument in Encino Motorcars v. Navarro, a case on its second trip to the high court regarding a dispute over the application of the Fair Labor Standard Act’s overtime-pay requirements for service advisors at car dealerships.Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to “protect all covered workers from substandard wages and oppressive working hours,” and it requires overtime pay for employees covered under the Act who work more than 40 hours in a given week. The FLSA exempts from this requirement, however, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers….” Hector Navarro and other service advisors filed suit against their employer Encino Motorcars, alleging that it violated the FLSA by failing to pay them overtime wages. Encino countered that as service advisors, Navarro and the other plaintiffs fell within the FLSA exemption. The district court ruled in favor of Encino, but the U.S. Court of Appeals for the Ninth Circuit reversed, relying upon a 2011 regulation issued by the Department of Labor (DOL) and indicating that service advisors were not covered by the exemption. The Supreme Court, however, thereafter vacated the judgment of the Ninth Circuit. Determining that the regulation at issue was procedurally defective, the Court remanded the case for the Ninth Circuit to construe the FLSA exemption without “placing controlling weight” on the DOL regulation.On remand, the Ninth Circuit, assuming without deciding that the DOL regulation was entitled to no weight, held that the FLSA exemption, on its own terms, did not encompass service advisors. As a result, the court indicated, plaintiffs could proceed against Encino on their claims for overtime. Encino petitioned for certiorari, however, and the Supreme Court agreed to take up the case a second time to consider again whether service advisors at car dealerships are exempt from the Fair Labor Standards Act's overtime-pay requirements. To discuss the case, we have Tammy McCutchen, Principal at Littler Mendelson, PC. This podcast is cosponsored with the Labor & Employment Law Practice Group.

On November 28, 2017, the Supreme Court heard argument in Cyan, Inc. v. Beaver County Employees Retirement Fund, a case involving a dispute over the concurrent jurisdiction of federal and state courts regarding class-action lawsuits that allege securities law violations. In 1995, Congress enacted the Private Securities and Litigation Reform Act (PSLRA) to address various abuses then taking place with respect to securities litigation. When plaintiffs then proceeded to file securities actions in state rather than federal courts in an effort to avoid PSLRA restrictions, Congress enacted the Securities Litigation Uniform Standards Act of 1998 (SLUSA), to “prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives of the [PSLRA].” Among other things, SLUSA amended the concurrent jurisdiction of federal and state courts over enforcement suits under the 1933 Securities Act to except “covered class actions,” which were otherwise provided for in Section 77p(c) of the Act. That section precludes covered class actions alleging state-law securities claims and permits precluded actions to be removed to and dismissed in federal court. In 2014, Beaver County Employees Retirement Fund brought a “covered class action” against Cyan, Inc. in California Superior Court, alleging violations of the 1933 Securities Act’s disclosure requirements. The Fund alleged no state law claims, only the federal Securities Act violations. Arguing that the state courts lacked subject matter jurisdiction over the federal claims in the wake of SLUSA, Cyan sought judgment on the pleadings. The Superior Court denied relief, following precedent from the California Court of Appeal (Second District) indicating that “concurrent jurisdiction of a covered class action alleging only claims under the 1933 Act ‘survived the amendments’ that SLUSA had made to that statute.” The California Court of Appeal (First District) affirmed the Superior Court, and the Supreme Court of California denied further review.The U.S. Supreme Court then granted certiorari to resolve whether state courts lack subject matter jurisdiction over “covered class actions” that allege only claims under the Securities Act of 1933. To discuss the case, we have Thaya Brook Knight, Associate Director of Financial Regulation Studies at the Cato Institute.

On November 6, 2017, the Supreme Court issued per curiam decisions in Kernan v. Cuero and Dunn v. Madison, both cases involving habeas petitions filed by state prisoners. In this episode, we will be discussing both decisions.Up first is Kernan v. Cuero. Michael Cuero pled guilty to two felony charges, on the understanding that the maximum prison time he faced was 14 years and 4 months. In the course of making his plea Cuero admitted to a previous conviction for residential burglary, which qualified as a predicate offense or “strike” under California’s “three strikes” law. After the plea but before sentencing, however, the prosecution realized that another of Cuero’s previous convictions counted as a second such strike. Over Cuero’s objection, the trial court granted the prosecution’s motion to amend its criminal complaint to add the additional strike--but also permitted Cuero to withdraw his guilty plea in light of the change. He ultimately entered a new guilty plea to the amended complaint, and the presence of the second strike exposed him to an enhanced sentence of a minimum of 25 years and a maximum of life imprisonment. Cuero was then sentenced to 25 years to life, the conviction and sentence were affirmed on direct appeal, and his state habeas petition was denied by the California Supreme Court.Cuero then sought habeas relief in federal district court, which denied his petition. The U.S. Court of Appeals for the Ninth Circuit, however, reversed that judgment and held that the state trial court had “acted contrary to clearly established Supreme Court law” by refusing to enforce the original plea agreement with its 14-years-and-4 months maximum sentence. On November 9 the U.S. Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In a per curiam opinion, the Court held that the Ninth Circuit had erred when it held that “federal law” as interpreted by the Supreme Court “clearly” established that specific performance of the original plea agreement was constitutionally required. Our next case is Dunn v. Madison. In 2016, Vernon Madison petitioned an Alabama trial court to stay his death sentence after a series of recent strokes which, he argued, left him incompetent to be executed. Madison has been awaiting his death sentence since the 1980s, when he was convicted of capital murder. In Ford v. Wainwright and Panetti v. Quarterman the Supreme Court indicated that a person is entitled to relief if it could be proven that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for a crime.” The trial court held a hearing to consider the testimony of two psychologists: one court-appointed and the other hired by Madison’s counsel. Although they acknowledged that Madison’s mental awareness and memory of past events may have declined post-stroke, both psychologists indicated that he could understand that Alabama was seeking retribution against him for his criminal act. The trial court denied Madison’s petition. Madison then sought habeas relief in federal district court, claiming that the state court had incorrectly applied Ford and Panetti and that its judgment was “based on an unreasonable determination of the facts in light of the evidence presented.” The District Court denied relief but a divided panel of the U.S. Court of Appeals for the Eleventh Circuit granted a certificate of appealability and reversed. As Madison no longer remembers committing his capital offense, the Eleventh Circuit reasoned, he cannot rationally understand the connection between his crime and his execution.The U.S. Supreme Court thereafter reversed the judgment of the Eleventh Circuit, explaining in a per curiam opinion that neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court, the Supreme Court held, did not apply Panetti or Ford unreasonably, nor rely upon an unreasonable assessment of the evidence before it. Madison therefore was not entitled to federal habeas relief. Justice Ginsburg, joined by Justices Breyer and Sotomayor, issued a concurring opinion. Justice Breyer also issued a concurring opinion.To discuss these cases, we have Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.

On November 7, 2017, the Supreme Court heard argument in Ayestas v. Davis, a case involving the extent to which 18 U.S.C. § 3599, which allows indigent defendants to obtain “reasonably necessary” investigative services in connection with issues relating to guilt or sentencing, applies in the context of procedurally defaulted habeas claims.Manuel Ayestas was sentenced to death for murder, and his conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals in 1998. Ayestas then sought state habeas relief, claiming ineffective assistance of trial counsel because his attorney had failed to bring Honduras-based family members to Texas in order to testify to Ayestas’s good character and lack of criminal record in Honduras. The Texas state district court found that Ayestas’s trial counsel, though ultimately unsuccessful, had acted with reasonable diligence, and therefore denied habeas relief. The Texas Court of Criminal Appeals affirmed in 2008.In 2009 Ayestas sought federal habeas relief under 28 U.S.C. § 2254, claiming that his trial counsel had acted ineffectively by failing to properly investigate all potentially mitigating evidence. An effective investigation, Ayestas argued, would have uncovered his lack of a criminal record in Honduras, his schizophrenia, and his addiction to drugs and alcohol. The district court determined that Ayestas had procedurally defaulted this claim by failing to raise it in state habeas proceedings, and found no cause to excuse that default. The U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability.In 2012, however, the U.S. Supreme Court held in Martinez v. Ryan that the ineffectiveness of state habeas counsel in failing to claim ineffective assistance of trial counsel may provide cause to excuse a procedural default. Although the Fifth Circuit denied Ayestas’s motion for a rehearing based on the Martinez ruling, the Supreme Court vacated that judgment and remanded Ayestas’s case for further consideration in light of the Supreme Court’s 2013 decision in Trevino v. Thaler, which made clear that Martinez applied in the context of Texas state procedures. The Fifth Circuit in turn remanded Ayestas’s case to the district court to reconsider his procedurally defaulted ineffective assistance claim in the first instance.On remand Ayestas filed a motion for investigative assistance under 18 U.S.C. § 3599(f), requesting a mitigation specialist in order to develop his broader ineffective assistance of trial counsel claim. In 2014 the district court denied habeas relief, concluding that neither Ayestas’s trial nor state habeas counsel had been constitutionally ineffective, and that a mitigation specialist was therefore not “reasonably necessary.” Ayestas thereafter moved to amend his federal habeas petition to add claims relating to a recently discovered prosecution memorandum suggesting that the push for capital punishment in Ayestas’s case was improperly motivated by his national origin. He also sought a stay in federal court until he exhausted these new claims in state court. The district court denied all relief and denied a certificate of appealability. The Fifth Circuit affirmed in all respects. The Supreme Court granted Ayestas’s subsequent certiorari petition to address whether the Fifth Circuit erred in concluding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective assistance of counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made. To discuss the case, we have Dominic Draye, Solicitor General of the State of Arizona.

On November 7, 2017, the Supreme Court heard argument in Patchak v. Zinke, a case involving separation of powers concerns that may arise when Congress passes a statute directing federal courts to “promptly dismiss” a pending lawsuit without amending any underlying substantive or procedural laws. In 2012, the Supreme Court held in the case Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that David Patchak had prudential standing to bring a lawsuit under the Administrative Procedure Act against the U.S. Department of the Interior (DOI), to challenge DOI’s taking title under the Indian Reorganization Act to a certain tract of land that was then put into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Band or Gun Lake Tribe. Congress responded by passing the Gun Lake Trust Land Reaffirmation Act (the Gun Lake Act), reaffirming DOI’s taking of land into trust for the Gun Lake Tribe, removing jurisdiction from the federal courts over any actions relating to the land in question, and indicating that any such actions “shall be promptly dismissed.” The district court in which Patchak had filed his suit determined that its jurisdiction to resolve the suit had been stripped by the Gun Lake Act and that the act was not unconstitutional. It therefore dismissed Patchak’s case. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s judgment on appeal.The Supreme Court then granted certiorari to address whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution's separation of powers principles.To discuss the case, we have Erik Zimmerman, Attorney at Robinson Bradshaw.