Federal Judiciary

Petitions to watch | Conference of 10.15.10

By Anna Christensen

This edition of ?Petitions to watch? features cases up for consideration at the Justices? October 15 conference.  These are petitions raising issues that Tom has determined 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.

Title: Simmons v. Galvin
Docket: 09-920
Issue(s): (1) Whether Section 2 of the Voting Rights Act of 1965 (?VRA?), 42 U.S.C. § 1973, applies to state felon disenfranchisement laws that result in discrimination on the basis of race; and (2) whether the Massachusetts felon disenfranchisement scheme established in 2000 violates the Ex Post Facto Clause of the United States Constitution as applied to those Massachusetts felons who were incarcerated and yet had the right to vote prior to 2000.

Certiorari-Stage Documents:

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition

Title: Stroud v. Blount
Docket: 09-1572
Issue(s): 1) Whether the lower court erred in affirming a $2.8 million punitive damages award under BMW v. Gore (1996) and State Farm Mutual Automobile Insurance Co. v. Campbell (2003), where the court quantified the ratio of punitive to compensatory relief by counting attorneys' fees as compensatory damages; and 2) whether the lower court erred in rejecting the applicability of the Noerr-Pennington doctrine to petitioning of law enforcement officials.

Certiorari-Stage Documents:

• Opinion below (Appellate Court of Illinois)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief for the National Association of Black Owned Broadcasters, Inc.

Title: Hall v. Thaler
Docket: 10-37
Issue(s): (1) Whether an IQ below seventy and substantial adaptive limitations that satisfy the clinical definition of mental retardation fail to shield a defendant from execution when those limitations may have been caused, even in part, by ?environmental? factors; and (2) whether Texas?s approach to assessing adaptive limitations violates established precedent.

Certiorari-Stage Documents:

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Texas State Senator Rodney Ellis et al.
• Amicus brief of the American Association on Intellectual and Developmental Disabilities and The Arc of the United States
• Petitioner's reply

Title: Metro Fuel LLC v. City of New York
Docket: 10-79
Issue(s): 1) Whether the First Amendment permits a municipality to impose restrictions on the placement of advertising signs on private property when the municipality has auctioned off to the highest bidder the right to place advertising signs on public property; and 2) whether the Supreme Court's decision in Metromedia, Inc. v. City of San Diego (1981) constitutes binding precedent for any First Amendment principle, and, if so, whether that decision established that outdoor advertising restrictions are not subject to the scrutiny that the Supreme Court has applied to other media in subsequent commercial speech cases; and 3) what evidence a municipality must proffer to meet its burden of justifying its decision to exempt its revenue-generating licensees from advertising sign restrictions.

Certiorari-Stage Documents:

• Opinion below (2d Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief for Atlantic Outdoor Advertising Inc. and Willow Media LLC
• Petitioner's reply

Title: Ashcroft v. al-Kidd
Docket: 10-98
Issue(s): (1) Whether a former government official is entitled to absolute immunity from a claim that he used the material witness statute as a ?pretext? to preventatively detain terrorism suspects; and (2) whether the former government official is entitled to qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of the respondent?s arrest.

Certiorari-Stage Documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Wesley MacNeil Oliver
• Amicus brief of William P. Barr et al.
• Petitioner's reply

Title: Dismuke v. United States
Docket: 10-109
Issue(s): Whether a conviction for attempting to flee or elude a police officer in a motor vehicle under a provision of a state statute which bars offenders from increasing their speed or extinguishing the vehicle's lights to flee, but does not require that anyone or anything actually be endangered, constitutes a ?violent felony? under the residual clause of Section 924(e)(2)(B)(ii) of the Armed Career Criminal Act.

Certiorari-Stage Documents:

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

Title: Weintraub v. Board
Docket: 10-202
Issue(s): (1) Whether the Supreme Court's holding that a public employee who engages in speech "pursuant to" his official duties cannot invoke the First Amendment protection to insulate his speech from employer discipline, applies only to speech ?required? by a public employee's official duties or extends to all speech ?stemming from? or ?related to? those duties; and (2) whether the inquiry into whether an employee spoke ?pursuant to? his official duties is purely a question of law, which a court may resolve at summary judgment, or a mixed question of fact and law properly reserved for a jury.

Certiorari-Stage Documents:

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief for National Education Association
• Petitioner's reply

Title: The Bank of New York Mellon v. Grede
Docket: 10-232
Issue(s): Whether a trustee appointed by a bankruptcy court to liquidate the estate has the authority to pursue assigned creditor claims against a third party when any recovery will not go to the estate.

Certiorari-Stage Documents:

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply

_________________________________________________________________

DISCLOSURE: Howe & Russell represents one of the parties in the two cases below; these cases are listed here without regard to their chances of being granted.

Title: Meacham v. Knolls Atomic Power Laboratory
Docket: 09-1449
Issue(s): Whether the defendants waived their right to a defense of ?reasonable factors other than age? provided in the Age Discrimination in Employment Act, 29 U.S.C. § 623(f), by refusing to press it at trial.

Certiorari-Stage Documents:

• Opinion below (2d Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of AARP

Title: KAPL, Inc. v. Meacham
Docket: 10-36
Issue(s): Whether respondents satisfied their burden of persuasion on the ?reasonable factors other than age? defense.

Certiorari-Stage Documents:

• Opinion below (2d Circuit)
• Conditional cross-petition for certiorari
• Brief in opposition
• Petitioner's reply

_________________________________________________________________

The following petitions have been re-listed for the conference of October 15.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

Title: Wong v. Smith
Docket: 09-1031
Issue(s): Do 28 U.S.C. § 2254(d) and this Court?s precedent permit federal habeas corpus relief on a claim that a state judge unconstitutionally ?coerces? jurors to return a guilty verdict by identifying specific evidence in the case as important and instructing them to consider it?

Certiorari-Stage Documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition (forthcoming)
• Petitioner's reply

Title: Beer v. United States
Docket: 09-1395
Issue(s): Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Certiorari-Stage Documents:

• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of Bar Associations
• Amicus brief of the American Bar Association
• Amicus brief of International Municipal Lawyers Association
• Amicus brief of Federal Judges Association
• Denial of rehearing en banc (Federal Circuit)
• Summary affirmance (Federal Circuit)

Title: Allen v. Lawhorn
Docket: 10-24
Issue(s): Whether a state court?s determination that trial counsel?s waiver of a penalty-phase closing argument did not prejudice the defendant is ?contrary to? Supreme Court precedent.

Certiorari-Stage Documents:

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners? reply

Title: Wilson v. Corcoran
Docket: 10-91
Issue(s): Whether a state capital defendant has a constitutional right to a sentencing decision that is not informed by facts that are neither elements of his crime or aggravated circumstances authorized by statute, and, if so, whether a federal court may grant habeas relief based on its own finding that the state trial court improperly considered non-statutory factors when imposing its sentence.

Certiorari-Stage Documents:

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

Full post as published by SCOTUSBLOG on October 12, 2010 (boomark / email).