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SCOTUS News, Week of March 13th, 2017

No new opinions from SCOTUS this week. Let’s take a look at the six cases they will hear starting next Monday.

Arguments Next Week: Monday

Murr v. Wisconsin deals with property rights. The petitioners, the Murrs, own two lots of land in Wisconsin. Wisconsin deemed one of the two lots to be substandard – under a minimum lot size – under new regulations. The Murrs wanted to sell this substandard lot in order to upgrade their other lot. Wisconsin told them they could not. The Murrs then asserted that this was an unconstitutional taking. State courts rejected this claim. The state maintained that it was not an unlawful taking to demand that the substandard lot either be sold with the other lot, or kept as part of one unified lot. This is in keeping with state law on property rights and land mergers. It remains to be seen whether the Supreme Court will rely solely on state laws, or defer to federal rules that are less clear on the matter (including the Fifth Amendment), or whether it will decide on some combination of both.

Howell v. Howell concerns military benefits. The Howells are a divorced couple. The husband, John Howell, agreed to pay half of his military retirement pay to his wife Sandra in their divorce agreement. He later decided to convert a portion of his retirement pay to disability benefits. This reduced his ex-wife’s share of the retirement pay. The Arizona Supreme Court ruled in Sandra’s favor, and John appealed to SCOTUS. The crucial law in question is the Uniformed Services Former Spouses Act. This Act establishes that only retirement pay – not disability pay – must be paid out to a former military spouse. Sandra countered that the divorce agreement established that she receive half of John’s full retirement pay, irrespective of any change in the division between actual retirement pay and disability pay. This conflict between state law and federal law has many ins and outs. The Supreme Court will cut through the brambles and decide who gets what, and on what grounds.

Arguments Tuesday

– On Tuesday, the Court will hear arguments in cases involving large corporations. First up, Microsoft v. Baker. A district court determined that a class action brought against Microsoft could not be adjudicated as such. The participants in the class action, however, are not barred from pursuing claims as individuals. Individual suits don’t happen as often, mainly due to the prohibitive cost, rather than any statutory limitation. Federal rules have at times sought to limit this, but ultimately, under a federal rule amended in 1998, the government gave wide latitude to courts of appeals in granting appeals of class denial. In this case, the district court denied the class action, and the appeals court denied appeal. In response, the plaintiffs dismissed their claims and, using a kind of loophole, thereby made it easier to appeal those dismissals when their class appeal was denied. The Supreme Court will consider the validity of this workaround strategy.

Interestingly, a case decided during Scalia’s tenure may control in this case. In that case, Genesis Healthcare v. Symczyk, the Court ruled 5-4 that a case like this becomes moot if plaintiffs voluntarily dismiss. In Justice Scalia’s absence, the Court is now comprised of a 4-4 split between Justices who originally ruled in the controlling case. This one may get dicey for the FantasySCOTUS Crowd and the {Marshall}+ Algorithm.

– Later on Tuesday, the Supreme Court returns to patent law. Impression Products v. Lexmark concerns patent exhaustion. Specifically, “whether the initial sale of a patented item terminates all patent rights to that item.” Impression Products recycles used printer cartridges originally produced by Lexmark. Lexmark argues this is a violation of its patent protections. Impression counters that because Lexmark’s products have already been sold, they have exhausted the patent on those products. Additionally, the vagueness of the exhaustion doctrine – and the fact that it is based in common law rather than statutory law – will bolster Impression’s argument. In any event, it is the Justices who will determine the extent of Lexmark’s patent, and they will not decide the case lightly. A slew of amici briefs have been filed with the Court, detailing the ramifications for the market if there is a sudden right-turn in the extent of a patent’s reach.

A second question in this case determines the enforceability of patents overseas. After the Court’s recent decision in Life Technologies v. Promega, the answer to this question becomes a little easier to forecast.

Arguments Wednesday

– On Wednesday, SCOTUS turns to another Fourth Amendment case, County of Los Angeles v. Mendez. To distill a rather large body of facts, officers of the LAPD were looking for a parolee-at-large. They knocked and announced when they entered a house for a search. Officers did not knock and announce when they entered a small shack at the back of the same property. The officers assumed the shack was empty, but it was in fact occupied by Mendez, and his pregnant girlfriend. Mendez reached for a BB gun, ostensibly to move it out of the way to stand up. The officers entered and fired shots.

A trial judge awarded damages to Mendez, who claimed a Fourth Amendment violation. The Ninth Circuit upheld further damages based on “provocation” theory: the police did not announce their presence to Mendez, and thus created a situation where confrontation was likely. On the other hand, there is no established rule that police have to knock and announce a second time (at the shack), after already knocking and announcing at the main house on the property.

This is a sticky situation, and several overlapping causative factors create conflicting interpretations of the law. To boil this down, here are a few questions the Supreme Court will consider: 1) whether qualified immunity still holds when the police “provoke” an aggressive response from someone; 2) whether “knock and announce” applies to separate buildings on the same property; 3) whether police can infringe Fourth Amendment rights in exigent circumstances that they themselves may have inadvertently created.

– The last case to be argued next week is comparatively less serious than these others. Water Splash v. Menon concerns service of process pursuant to the Hague Service Convention (hereinafter: “the Convention”). This Convention is a treaty that establishes protocols for cross-border service of legal documents. In this case, the language of the treaty will be put under the microscope by the respondent. Respondent Menon received formal service of documents through the mail. She and her counsel argue that receiving service through the mail is not viable under the terms of the Convention. The treaty’s language seems to suggest that mail service is not covered. The only service clearly stated is by a judicial officer or someone empowered by one. Menon has some support from decisions made by the 5th and 8th Circuit Courts, as well as the Texas 14th Court of Appeals. Water Splash cites executive and congressional intent, a majority of Courts of Appeals’ rulings, and practical concerns. The main issue in this case is whether the Convention allows for service by mail. It will fall to SCOTUS to determine the extent of their interpretive powers as they relate to treaties. They will likely also define the precise meaning of the clauses in the treaty regarding service of legal documents.