Supreme Court Update: Order Lists 10/15/12 and 10/29/12

November 1, 2012 Supreme Court Update

Greetings, Court fans!

We hope those of you on the East Coast made it through Hurricane Sandy without too much damage or inconvenience. We now have a belated Halloween treat for you: more cases on the docket concerning election law, bankruptcy, tax, and habeas proceedings, and an SG invite on a Fair Housing Act question.

The Court has granted cert in the following cases:

Arizona v. Inter Tribal Council (12-71) asks whether the Court of Appeals erred in "creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (‘the Elections Clause');" and (2) "in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?"

Bullock v. Bankchampaign, N.A. (11-1518) asks "What degree of misconduct by a trustee constitutes ‘defalcation' under §523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee's resulting debt from a bankruptcy discharge - and does it include actions that result in no loss of trust property?"

PPL Corp. v. CIR (12-43) asks "[w]hether, in determining the creditability of a foreign tax, courts should employ a formalistic approach that looks solely at the form of the foreign tax statute and ignores how the tax actually operates, or should employ a substance based approach that considers factors such as the practical operation and intended effect of the foreign tax."

The Supreme Court held in Holland v. Florida (2010) that a habeas petitioner is entitled to equitable tolling of the one-year period for filing a habeas petition "only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." McQuiggen v. Perkins (12-126) asks: (1) "Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that ‘prevented timely filing' of a habeas petition;" and (2) "If so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that ‘he has been pursuing his rights diligently.'"

In Trevino v. Thaler (11-10189), the Court of Appeals refused to stay Trevino's appeal until the Supreme Court resolved a question then-pending in several cases, concerning whether ineffective assistance of state habeas counsel in failing to raise a meritorious claim of ineffective assistance of trial counsel could establish cause for default in state habeas proceedings. Ultimately, the Supreme Court decided in Martinez v. Ryan (2012) that such ineffective assistance of state habeas counsel could establish cause for default of a claim of ineffective assistance of trial counsel. Trevino v. Thaler now asks whether the Court should vacate and remand the Court of Appeals' decision for consideration of Trevino's argument under Martinez v. Ryan.

The Court also asked the SG to weigh in on the cert petition in Mount Holly v. Mt. Holly Gardens Citizens (11-1507), which would ask (1) "Are disparate impact claims cognizable under the Fair Housing Act?" and (2) "If such claims are cognizable, should they be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test?" The second question would contain the following subparts: (a) "What is the correct test for determining whether a prima facie case of disparate impact has been made?"; (b) "How should statistical evidence be evaluated?"; and (c) "What is the correct test for determining when a Defendant has satisfied its burden in a disparate impact case?

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400