Diary

November SCOTUS Docket

The November Supreme Court oral argument docket will begin on Monday October 30th and run through November 8th during which time they will hear nine cases.  Two of them are considered important.

Ayestas vs. Davis

  • To be heard:          Monday, October 30th
  • Origin:                    5th Circuit Court of Appeals
  • Type of case:          Fifth Amendment (assistance of counsel)

Summary of case: Ineffective defense counsel are now common appeals, especially in capital murder cases.  In this one, Ayestes, a Honduran national, was convicted of murder in Texas.  It is alleged that during the sentencing phase, certain mitigating factors had failed to be introduced by his court appointed counsel.  Essentially, his appeal attorney also failed to follow up on certain information of a mitigating nature and the sentence was upheld by the 5th Circuit.   The question is whether the 5th Circuit erred when they ruled that the denial of “necessary resources” in such cases is valid if the claim was not raised in the appellate habeas petition.

Wilson vs. Sellers

  • To be heard:          Monday, October 30th
  • Origin:                    11th Circuit Court of Appeals
  • Type of case:          Habeas proceedings

Summary of case:  This is another case asserting ineffective counsel in a sentencing phase case.  However, at issue is whether an appellate court is required to look at the last reasoned decision of a lower court which the 11th Circuit used as their criteria to dismiss the habeas petition, or whether they have to look at the entire record of the case.

U.S. Bank National Association vs. Village at Lakeridge

  • To be heard:          Tuesday, October 31st
  • Origin:                    9th Circuit Court of Appeals
  • Type of case:          Judicial standard of review

Summary of case: This case involves the definition of “insider status” and whether it should be the standard of review as adopted by three other circuits, or whether the 9th Circuit’s definition is correct.

Artis vs. District of Columbia

  • To be heard:           Wednesday, November 1st
  • Origin:                     DC Circuit Court of Appeals
  • Type of case:          Judicial procedure

Summary of case:  A statute of limitations case involving the appeals process and when the clock begins to run.

Merit Management Group, LLC vs. FTI Consulting, Inc.

  • To be heard:           Monday, November 6th
  • Origin:                     7th Circuit Court of Appeals
  • Type of case:          Statutory interpretation of Bankruptcy Code

Summary of case:  A complicated bankruptcy case involving the transfer of assets by or to a financial institution that has a financial stake in the transfer.  Largely accepted to resolve a serious split in interpretation between various Circuit Courts of Appeal.

Leidos, Inc. vs. Indiana Public Retirement System

  • To be heard:           Monday, November 6th
  • Origin:                     2nd Circuit Court of Appeals
  • Type of case:          Statutory interpretation of Securities Exchange Act

Summary of case:  What a party is obligated to disclose under the Securities and Exchange Act of 1934 and subsequent SEC rules to resolve a split in statutory interpretation between various Circuit Courts of Appeal.

{NOTE:  Case has been removed from docket after both sides informed the Court they are near a settlement.}

Patchak vs. Zinke

  • To be heard:           Tuesday, November 7th
  • Origin:                     DC Circuit Court of Appeals
  • Type of case:          Separation of Powers
  • Justices to watch: Neil Gorsuch, Anthony Kennedy

Summary of case:  This is ongoing case that has previously been before the Court.  David Patchak is a landowner in rural Michigan who purchased land near other property that was taken into trust by the Interior Department for a local Indian tribe.  The tribe was recognized in 1998 and Patchak argued that the applicable law was passed in 1934 and that therefore they held no claim to the land.  While litigation was pending, Congress passed a law specifically granting the Interior Department to take the land into trust.

The lower courts dismissed Patchak’s claims under (1) the Separation of Powers doctrine, (2) the Fifth Amendment, (3) the First Amendment right to petition, and (4) argued it was a bill of attainder.  The primary beef is that Congress did not amend the necessary underlying substantive and procedural laws.

Husted vs. A. Philip Randolph Institute

  • To be heard:            Wednesday, November 8th
  • Origin:                      6th Circuit Court of Appeals
  • Type of case:            Voting Rights
  • Justices to watch:   Neil Gorsuch, Elena Kagan

Summary of case:  This case involves Ohio’s law for removing people from voter registration databases.  Federal law states that a voter cannot be removed because they do not vote in an election, but that they must be removed if they fail to vote in two consecutive federal elections after they receive a confirmation notice from the state.

As the petition from the state contends:

Since 1994, as part of its general list-maintenance
program, Ohio has sent voters who lack voter activity
over a two-year period the confirmation notice that
the NVRA and HAVA both reference. If these voters
do not respond to that notice and do not engage in
any additional voter activity over the next four years
(including two more federal elections), Ohio removes
them from the list of registered voters and requires
them to reregister if they otherwise remain eligible
to vote. The Sixth Circuit held that this decades-old
process violates § 20507(b)(2) because Ohio uses a
voter’s failure to vote as the “trigger” for sending a
confirmation notice to that voter.

The two major reasons people are removed from the registration rolls is a change of address, or death.  Change of addresses are confirmed by comparing voter registration information with US Postal Service records.  Ohio’s law addresses those individuals who (1) have no voting record, (2) have received notice and (3) may not have change of address information on file with the Postal Service.

The main problem is the triggering mechanism for sending the notice and the courts in the past have not directly answered the question.  It seems the Ohio process attempts to close a loophole, but may actually violate federal laws that specifically state that a person cannot be removed by reason of voting inactivity alone despite the fact they make an attempt at due process.

This will be a tough one to handicap and the oral argument will be closely watched to divine the leanings of individual Justices.