Diary

The December Supreme Court Docket

In December, the Supreme Court will hear oral arguments in 12 cases.  The following is a summary of cases:

1. Perez vs. Mortgage Bankers-  This case is consolidated with a sister case, Nickols vs. Mortgage Bankers.  In a continuing effort to define the parameters of rule-making powers of executive branch agencies, this case asks whether those agencies must engage in notice-and-comment periods (which is required under the Administrative Procedures Act) before it can change a previously passed rule.  The government is basically arguing that if the first rule issued followed the requirements of the APA, then subsequent actions are “interpretative” and do not necessarily have to follow those guidelines.

2. Elonis vs. United States-  This will probably be the biggest case in December and focuses on free speech, social media, and federal law.  Elonis was convicted under federal law for making threatening comments against his former girlfriend on Facebook, a social media site.  Federal law prohibits such.  This case centers on whether true intent is required to convict a defendant in these cases.  This originated out of a domestic dispute in which Elonis, in response to that “heartbreak,” posted self-styled rap lyrics that seemed to threaten his ex.  Some such “lyrics” were also reproduced lyrics from actual rap artists, which he credited in his postings.  On some occasions, he noted that the postings were not meant to reflect reality, but were the violent musings of someone working something out online.  His ex apparently felt threatened enough to seek and obtain a restraining order.

This is an interesting free speech case since social media websites are replete with such postings.  The decision must ultimately boil down to the subjective intent of the poster of such rantings.  Obviously, the trial court felt that the postings were, in fact, serious enough to warrant conviction.  But one can see the problems that may ensue and the implications for free speech.  If subjective intent is deemed by the Court not to be a requirement for conviction, the musings of anyone on any social media website or even political blogs could be seen as “threatening” to anyone.

3. B&B Hardware vs. Hargis Industries-  This is a complicated trademark case where a trial board determines there is likely confusion and whether that finding can be relitigated in a higher court.

4. Whitfield vs. United States-  Federal sentencing guidelines provide for a minimum of ten years to a maximum of life in prison for any bank robber who forces another person to “accompany them” during the bank robbery or in flight.  This section of the federal bank robbery statutes was included to increase penalties for any robber that took and/or used hostages in the commission of the robbery, or while running from authorities.  In this case, Whitfield robbed a person in their home and the government contends that their forced movement throughout the home violated this part of the statute.  During a bank robbery, suppose a robber instructs the teller to go to the vault and get money.  Is that “forced accompaniment?”  Is it forced accompaniment to tell patrons to lie on the floor?  One can easily see that Whitfield’s conviction certainly broadens the original intent of this statute.

5. Hana Financial vs. Hana Bank-  This is another trademark case.  It basically asks whether whether a jury or a judge should determine whether use of an older trademark can be tacked onto a new one.

6. Young vs. United Parcel Service- This will be a much discussed case since it involves the rights of pregnant women and workplace discrimination.  Federal law requires that persons who have work disabilities because of an illness or injury be offered certain accommodations.  UPS has a policy- codified in the collective bargaining agreement- to grant light duty requests to persons injured on the job, those that suffer a disability covered under ADA (pregnancy does not qualify), and to those who have lost their driver’s licenses.  In effect, contract law meets federal law against pregnancy discrimination.  The courts and the EEOC determined that UPS’ criteria for granting “light duty” were gender neutral and, thus, did not violate any federal law.  One expects that should the Supreme Court side with the lower courts, the EEOC and UPS, firebrands like [mc_name name=’Rep. Nancy Pelosi (D-CA)’ chamber=’house’ mcid=’P000197′ ] and [mc_name name=’Sen. Elizabeth Warren (D-MA)’ chamber=’senate’ mcid=’W000817′ ] will immediately propose legislation to overturn this “women unfriendly Supreme Court.”  Like the Ledbetter case, expect to see the “Peggy Young Law” soon.

7. Direct Marketing Association vs. Brohl- This case concerns the Anti-Injunction Act which denies courts jurisdiction in granting injunctions against the imposition of taxes.  However, this case provides a twist in that a group of non-taxpayers are not asking for injunctive relief in state courts, but attempting to enjoin the state’s informational and reporting aspects of a tax law.  In other words, without attacking the tax itself, they are seeking delay of its imposition by attacking the reporting and publication of the tax.  Ingenious, but likely doomed to failure.

8. Department of Transportation vs. Assn. of American Railroads– At first glance, it looks like a boring railroad case.  In reality, it asks whether the scheme developed for Amtrak preference on rail lines violates the constitution by delegating authority to a non-legislative body, in this case the Department of Transportation.  In fact, this case could have ramifications beyond railroads and Amtrak.

9. Gelboim vs. Bank of America- A complicated case that must determine whether and under what circumstances the dismissal of an action that has been consolidated with other suits can be appealed.

10. Alabama Department of Revenue vs. CSX-  This case must determine whether Alabama discriminates against a rail carrier, in violation of federal law, by requiring that they pay a sales-and-use tax when they grant exemptions to the rail line’s competitors.  Yes, this case was previously before the Supreme Court a couple of terms ago, remanded, and has returned.

11. United States vs. Wong- A rather boring case that involves the time frame for filing suits in federal court.

12. United States vs. June- A rather boring case that involves the time frame for filing complaints with administrative agencies.

In January, the Supreme Court will hear cases involving free speech rights of religious organizations, antitrust violations, the scope of the EEOC’s powers, the rights of Medicare recipients, a state campaign finance law, a search and seizure case, and a fair housing dispute.