SCOTUS Kicking Off 2017 With Wide-Ranging Oral Arguments


The U.S. Supreme Court kicked off 2017 with wide-ranging oral arguments involving everything from credit card swipe fees to disability education.

But first, it dealt with monetary criminal penalties.

Did you know that if “you're convicted of a crime and ordered to pay a fine, but your conviction is later overturned, you're not necessarily entitled to a refund”? That’s what Bloomberg BNA’s criminal law reporter Jessica DaSilva tells us about the court’s first argument of the week, No. 15-1256, Nelson v. Colorado.

“Under Colorado law, defendants seeking to recover those fines must prove actual innocence at a hearing under a clear and convincing standard—a harder standard to meet than preponderance of the evidence, but easier than the reasonable doubt standard used at criminal trials,” Jessica says.

They also must file a separate lawsuit to reclaim their fines.

Many of the justices seemed incredulous that the state could just keep money after the original justification for the fine—a criminal conviction—dissipated.

“There’s something wrong with that,” Justice Stephen G. Breyer said to laughter.

Still, the case may not be as easy as it sounds. It will likely come down to whether the justices view the right to get your money back as a substantive right or a procedural one, Jessica tells us.

Read why that’s so here (subscription required. BUT… you could sign up for a free trial to United States Law Week and read it now without a subscription!).

Later that day, the justices heard oral arguments in possibly the most fabulously named case since Wood v. Moss: No. 15-1500, Lewis v. Clarke. And, unbelievably, the case involves tribal immunity!

The question here is whether tribal immunity, which prevents someone from suing a Native American tribe without its consent, also prohibits a suit against the tribe’s employee for conduct that occurred off the reservation.

Breyer thought that idea of tribal immunity was itself “off the reservation,” and the lower court agreed. The plaintiffs here should have sued the employee in tribal court, not state court, the Connecticut Supreme Court said.

But the U.S. Supreme Court was concerned that the state court mixed up tribal immunity with official immunity, which protects certain government workers when they are acting within the scope of their employment duties. Some of the justices thought that was a reason to send the case back to the state court.

The state court conflated the two immunity doctrines, Justice Sonia Sotomayor said. So why don’t we send it back to them so they can “unconflate” them, she said.

Read more about the argument here.

The next case, No. 15-1391, Expressions Hair Design v. Schneiderman, involves consumer protection. In fact, both sides argued that their positions protect consumers.

The case involves New York’s “no-surcharge” law, which “prohibits sellers from charging consumers a higher price for using a credit card, but allows them to offer a discount for using cash,” Bloobmerg BNA’s free speech reporter Melissa Stanzione explains.

“The sellers who brought the challenge say the law keeps consumers in the dark by criminalizing truthful speech,” Melissa says. “Their challenge asks whether the law unconstitutionally restricts speech and is ‘hopelessly vague.’”
New York, on the other hand, “asserts that the law prevents unfair profiteering, consumer anger and deceptive sales tactics.”

Read more from Melissa’s coverage of the argument here.

Next, the tire giant Goodyear tried to convince the justices to let them “wiggle out of a record-breaking $2.7 million sanction for alleged discovery abuses,” Bloomberg BNA’s professional conduct reporter Samson Habte says.

The case challenges “an order that hit Goodyear and two outside lawyers who defended the tire manufacturer in a products-liability case with a $2.7 million sanction for what the federal district judge who issued the order described as ‘widespread discovery misconduct,’” Samson explains.

He also said the case provides “the justices with an opportunity to clarify the murky boundaries of courts’ inherent power to sanction discovery abuses.”

You can read more about the case here.

Finally, the court wrapped up its week with an argument over the duty schools owe to disabled students, in No. 15-827, Endrew F. v. Douglas Cty. Sch. Dist.

The justices struggled with how to articulate the Individuals with Disabilities Education Act’s requirement that schools provide disabled students with a “free appropriate public education.” What does that mean in practice, the justices tried to determine.

The court in 1982 said that it requires schools to provide “some education benefit” to disabled students. But in the 34 years since that case, that ambiguous standard hasn’t proven to be all that helpful.

Some read it as requiring some benefit; others as some benefit, Chief Justice John G. Roberts Jr. said, meaning that people disagree over the amount of benefit that must be provided.

We’re going to have to use “musical notation” to write this opinion, Justice Samuel A. Alito Jr. quipped.

But the court does seem inclined to try to come up with a helpful standard, no matter how challenging it might be.

Read more about the argument here.

That’s it for this week. The high court returns Jan. 17 for more oral arguments. Until then, be sure to sign up for a free trial to United States Law Week, so that you can keep up with all the latest Supreme Court news.