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Supreme Court Calendar for February 2013

In February, the United States Supreme Court will hear oral arguments in ten cases. Before discussing them and their importance, we should look at some of the current cases already argued and granted review. As the national economy changes mainly attributable to technological advances, the Court is weighing in more on some of the problems popping up. For example, the Internet and e-commerce as well as patents over genetically modified plants have been finding their way to the Court. Most of this is fodder for the lawyerly types who specialize in patent or copyright law. But, take the Kirtsaeng case as an example of how what seems to be a rather trivial case can take on added significance. In that case, a student in college purchased text books abroad, had them shipped to the US, and then resold them to help fund his college education here. Normally, text books sold by American companies abroad are sold at a discount. In Kirtsaeng’s case, he was found to be in copyright violation and ordered to pay the publisher something like 10 times the value of his profits. Although many may say “So what?,” think about the used recordings and books that change hands for a profit daily on websites like e-Bay. These are not all esoteric cases, but have real world implications for everyone.

The second point to be made is that as the Court wades into the new economy, many of these cases originate in the Federal Circuit Court of Appeals. They have a tendency to read patent and copyright laws very broadly. Hence, the average Joe ends up on the losing end and it is in the Supreme Court that the average Joe, ironically, that they are prevailing. I say ironic because it was a mere two terms ago that Justice Sotomayor admonished her conservative colleagues for “slamming the courthouse door” on average people. This David versus Goliath scenario has actually worked out more to the advantage of the Davids out there. Last term, the Sacketts- an Idaho retired couple- had their day before the Supreme Court and prevailed against a dictatorial EPA. And even in those cases where the “courthouse door was slammed” on people, a simple change to the underlying law by Congress could fix the problem. That is what is so amusing about Obama’s reliance on the Ledbetter Act as some great proof that he has advanced woman’s rights. In fact, the Ledbetter Act simply clarified the statute of limitations on filing pay discrimination claims. It in no way mandated that women be paid more or anything like that. A simple change to the original law fixed the “problem.”

Therefore, one would assume that the Federal Circuit has become the new whipping boy for the Supreme Court replacing the 9th Circuit. Thus far, the Court has granted review in 67 cases. Only five- or 7%- of these cases come from the Federal Circuit. That would put this term roughly on par with previous terms as far as cases arising out of the Federal Circuit. Conversely, eleven of the 67 cases actually come from the Ninth Circuit, or 16%. The same number come directly from state supreme courts on direct appeal. Thus, 32% of all cases come from these two sources. Having the honor of third place is the Second Circuit located in New York City.

The first case they will hear in February arises out of the 3rd Circuit located in Philadelphia. In Millbrook v. United States, a prisoner (Millbrook) seeks to sue federal prison guards for forcibly raping him upon intake. The lower court ruled that the lawsuit is barred by the concept of sovereign immunity (where federal officials cannot be sued for certain acts). Congress often makes exceptions to sovereign immunity and they could do so in this case if the Supreme Court affirms the lower court’s decision. One can imagine if sovereign immunity was waived carte blanch for prison officials and guards. It would lead to a theater of the absurd where prisoners would sue guards and officials for a push, shove, or words that hurt their feelings. I realize that criminals are sent to prison as punishment and to remove them from society given the risk factors involved. However, they are not sent there in order to be raped at the whim of sick prison guards.

In Bowman v. Monsanto, this is a patent case involving the genetic modification of certain plant seeds to re-propogate. The details are convoluted, so I will spare the details. McBurney v. Young is a rare case in that it involves the Constitution’s Article IV Privileges and Immunities Clause. In this case, whether a state can restrict access to public records from citizens of another state is at issue. This case is out of Virginia and involves their public records statute. Another case from the 4th Circuit is PPL v. IRS and has broad implications under tax law and regulatory power. Specifically, the Court is asked what standard should be employed when the IRS determines a “foreign tax.” Many businesses that conduct transactions overseas are taxed in foreign countries. Those taxes can be deducted for US tax purposes. But, what exactly is a “tax?” The Court must decide whether a technical definition should be used for IRS purposes, or whether the effect of the foreign action acts like a “tax,” although it may be constructed and named something else. Thus far, the lower courts have sided with the technical definition over the actual effects definition. The implication is that American businesses, should the Court decide on the latter definition, would be granted greater domestic tax relief.

McQuiggen v. Perkins is an interesting habeas case. Here, a person convicted after rejecting a plea agreement, later filed an appeal where 5 of his 8 objections were denied. While the other 3 worked their way through the lower courts at the state level (eventually denied), the statute of limitations expired by one month to file an appeal for reversing the trial verdict due to evidence proving his innocence. Generally, this Court has ruled that a deadline is a deadline, but in this case an innocent person faces the real possibility of spending a long time in prison. A companion habeas case, Trevino v. Thaler, is another convoluted case of which I will spare the reader the boring details.

In Peugh v. United States, federal sentencing guidelines are being challenged under the Ex Post Facto Clause of the Constitution. Specifically, the Court is being asked which guideline should be employed- that which existed at the time of the crime, or that which existed at the time of sentencing? The solution would seem commonsense, but that is not always the case. In American Express vs. Italian Colors Restaurant, the Supreme Court will be asked whether trial courts can invalidate an arbitration agreement on the grounds that such an agreement would later disallow class arbitration. Recently, the Court has decidedly sided with arbitration settlement of cases under the Federal Arbitration Act. That law was passed to alleviate the burden on courts. Thus, one would expect this Court to side with the arbitrators, even if it “slams the courthouse door” on others.

There are two potentially huge cases to be heard in February. The first is Maryland vs. King. The Maryland Supreme Court struck down a state law which required that anyone arrested for certain crimes submit to DNA collection and analysis. The results would then be placed in a state database. The obvious purpose is to create such a large database that it could potentially lead to quicker solving of crimes if there is DNA evidence. In fact, King in this case became a suspect in a rape years before after being arrested more recently and giving a DNA sample. His argument is that the DNA collection was a warrantless search and that absent the DNA analysis he would have never been a suspect in the previous unsolved rape case. In fact, he was found guilty of that rape.

As the father of two daughters, I am all for taking rapists off the streets. But, as an American citizen, I fear a police state and still believe in the dictum, enshrined in the Bill of Rights, that a person is innocent until proven otherwise. Simply being arrested does not automatically infer guilt. I can fully support the Maryland law if Mr. King was found guilty of the more recent crime for which he was arrested. I can even condone DNA collection from those found guilty for non-violent or drug-related crimes. But, I cannot condone DNA collection from every arrestee in order to build up a database. If that is the goal, then collect DNA samples at birth from every person born in an America and from every immigrant entering this country.

Which brings up another interesting point. Maryland, a rather liberal state, is all for this DNA database. At the same time, they have voted down the use of a database to confirm one’s legal status to work in this country- E-Verify. I find it somewhat amusing that liberals are all for databases and all their privacy concerns fly out the window when its use is to their advantage. Yet when a conservative idea like using E-Verify is suggested, suddenly there are privacy concerns or they trot out a study of how unreliable these databases are. Another example where they suddenly embrace the reliability of federal databases is this silly notion of automatic voter registration. Ironically, the very databases suggested for use there are the same as those used for E-Verify.

The other important case is Shelby County, Alabama vs. Holder. This is a direct facial challenge to the constitutionality of the Voter Rights Act of 1965. In order for a jurisdiction or state to fall under Section 5 of that law, certain criteria need to be met. Those criteria are set out in Section 4 of the Act. Once under Section 5, any change to any voting law in the covered jurisdiction or state must be approved either by the Justice Department, or the DC Circuit Court of Appeals. These changes run the gamut from photo voter ID requirements, the wording on ballot questions, the location of polling places, registration deadlines, etc.

The problem is that the criteria in Section 4 derive from a by-gone era in America history. This challenge to the law arises out of a decision in Shelby County, a suburb of Birmingham, Alabama, to annex land. This, the Justice Department determined, allegedly diluted the vote of black voters in school board elections. The county argues that they are the victim of a outdated statistical model that denies the reality of the South in 2012. Blacks argue that racism still exists in the South and that the Voting Rights Act as it is written today is clearly constitutional under the 14th and 15th Amendments.

But here is the biggest problem with that argument. This criteria is and was designed to root out racism in voting in the South. That is like saying that racism is common only to the South. For example, both South Carolina and Texas are covered states. Their photo voter ID law is being fought by Eric Holder’s Justice Department under the Voting Rights Act. However, a non-covered state like Indiana passed and implemented similar legislation with no questions asked. Why? Because they were a non-covered area. Although the Indiana law eventually came before the Supreme Court and was upheld, the challenge was not under the Voting Rights Act of 1965.

And that is Shelby County’s argument- that they are treated differently from other states solely because of arbitrary statistical analysis and models based on a former reality, not more current data. In fact, looking at the legislative history of the Act, the statistical analysis was designed to specifically capture the South, or former Confederacy. Only later were jurisdictions in states like Arizona and California added based upon alleged ethnic voting discrimination. In fact, one study showed that if the statistical parameters were modernized, election laws in states like Illinois and Michigan would likely run afoul of the law and they would come under the law’s jurisdiction.

The Court under John Roberts fired a warning shot at Congress a few terms back stating that the time may be near to revisit the law and Section 4’s determinative factors and, thus, the whole of Section 5. That case was not a facial challenge to the law, so there was no need to go that far. But, Congress failed to act. Should this Court side with Shelby County, it will force the hand of Congress (much like the Ledbetter case did), although this will place race relations front and center in Congress when there are huge challenges facing this country in other areas.

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