Supreme Court Update: Tennant v. Jefferson County Commission (11-1184) and Order List

October 8, 2012 Supreme Court Update

Greetings, Court fans!

It seems like only yesterday that we were parsing the Court's Affordable Care Act decision together. We hope you've had a restful summer and are ready for another exciting Term. The Term officially kicked off this past week, but the Justices resumed adding to their docket a few weeks ago.

First, let's tell you about Tennant v. Jefferson County Commission (11-1184), a per curiam decision issued just before the Term began. Tennant involved a challenge to West Virginia's 2011 congressional redistricting plan. Article I, Section 2 of the Constitution requires that members of the House be "apportioned among the several States . . . according to their respective Numbers." Under the principle of "one person, one vote," the Court has required States to justify population differences between districts that "could practicably be avoided." To establish an apportionment claim, parties who challenge a State's redistricting plan bear the burden of proving population differences that "could practicably be avoided." The burden then shifts to the State to show with some specificity that the population differences were "necessary to achieve some legitimate state objective." In this case, West Virginia had to redistrict after the 2010 census due to population shifts within the State. The Legislature considered one plan that would achieve a population difference of just one person between the largest and smallest districts, but required splitting counties, placing two incumbents in the same district, and moving one-third of the State's population from one district to another. The Legislature rejected that plan, and ultimately adopted a plan where the population variance between the largest and smallest districts equaled 0.79% of the population of the average district. The adopted plan exhibited the second highest population variance of all the plans the Legislature considered, but required the least amount of disruption to the existing districts – only one county had to move districts. Commissioners from another county sued, and the District Court enjoined the State from implementing the plan.

This past January, the Court stayed the District Court's injunction pending appeal – i.e., allowing the redistricting to go forward. Perhaps not surprisingly then, in last week's per curiam decision, the Court reversed the District Court. Because the State conceded that it was possible to achieve a smaller population variance with a different plan, the only question before the Court was whether the State could demonstrate that the variances in the plan it adopted were "necessary to achieve some legitimate state objective." The Court held that that State's proffered objectives of not splitting political subdivisions, avoiding contests between incumbents, and minimizing population shifts all qualified as "valid, neutral state redistricting policies." Looking at the other plans before the Legislature, the Court found that none of the alternatives "came close" to meeting the State's three legitimate objectives while achieving a lower variance. While the Court cautioned that States may not always prioritize a legitimate objective at the cost of lower variance, the Court found that the West Virginia legislature had chosen an appropriate balance here.

The Court has added the following cases to its docket since we last wrote:

Chafin v. Chafin (11-1347) asks whether an appeal of a District Court's ruling on a Petition for Return of Children pursuant to International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction "becomes moot after the child at issue returns to his or her country of habitual residence . . . leaving the United States Court system lacking any power or jurisdiction to affect any further issue in the matter," or "should the United States Courts retain power over their own appellate process . . . and maintain jurisdiction throughout the appellate process giving the concerned party an opportunity for proper redress."

Standard Fire Insurance Co. v. Knowles (11-1450) asks: "When a named plaintiff attempts to defeat a defendant's right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a ‘stipulation' that attempts to limit the damages he ‘seeks' for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the ‘stipulation,' exceeds $5 million, is the ‘stipulation' binding on absent class members so as to destroy federal jurisdiction?"

Descamps v. United States (11-9540), concerning sentencing enhancements under the Armed Career Criminal Act, asks whether a "state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach."

Gabelli v. SEC (11-1274) asks: "Where Congress has not enacted a separate controlling provision, does the government's claim first accrue for purposes of applying the five-year limitations period under 28 U.S.C. § 2462 when the government can first bring an action for a penalty?"

Levin v. United States (11-1351) raises the "particular question" of "whether suit may be brought against the United States for battery committed to a civilian by military medical personnel acting within the scope of employment" under 10 U.S.C. § 1089 and the Federal Tort Claims Act, as well as a "broader question" regarding "the same and other claims against groups of government employees whose defense would fall under similarly worded statutes."

Missouri v. McNeely (11-1425) presents the very interesting question: "Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream."

The Driver's Privacy Protection Act of 1994, 18 U.S.C. §§ 2721-2725, prohibits the obtainment, use, or disclosure of personal information in state DMV databases unless the use of such information falls within one of several enumerated exceptions, including a "litigation exception." Maracich v. Spears (12-25) asks: (1) "Whether the Fourth Circuit erred in holding . . . that lawyers who obtain, disclose, or use personal information solely to find clients to represent in an incipient lawsuit – as opposed to evidence for use in existing or potential litigation" fall within the litigation exception of the Act; and (2) "Whether the Fourth Circuit erred in reaching the conclusion . . . that a lawyer who files an action that effectively amounts to a ‘place holder' lawsuit may thereafter use DPPA-protected personal information to solicit plaintiffs for that action through a direct mail advertising campaign on the grounds that such use is ‘inextricably intertwined' with ‘use in litigation.'"

The Medicaid Act requires participating States to seek reimbursement from third party tortfeasors for health-care expenditures the State made to Medicaid recipients who are tort victims. Delia v. E.M.A. (12-98) asks whether North Carolina General Statute § 108A-57 – which allows the State to assert a lien upon the lesser of one-third of the recipient's recovery or the State's actual medical expenditures when the recipient and the third party resolve their tort claims through judgment or settlement – is "preempted by the Medicaid Act's anti-lien provision as it was construed in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006)."

The Court has also asked the SG for its views on these petitions for cert:

Young v. Fitzpatrick (11-1485) would ask: (1) "whether police officers, employed by the Puyallup Indian Tribe, but trained, certified, and cross-commissioned by the State of Washington, and armed, equipped, and provisioned by the United States, are subject to the Constitution, U.S. civil rights laws, and state tort law;" and (2) "whether the Shelter or Conceal Clause of the Treaty of Medicine Creek, and additional sources of federal and state law, preempts any claims of qualified immunity by individual Puyallup tribal police officer defendants in a suit for violation of the Constitution, U.S. civil rights laws, and state tort law."

Arzoumanian v. Munchener Ruchversicherungs (12-9) concerns Section 354.4 of the California Code of Civil Procedure, which authorizes actions by the Armenian Genocide victims or their heirs for claims under insurance policies purchased or in effect between 1875 and 1923, and extends the statute of limitations for such actions. The case would ask whether this "state law concerning traditional state responsibilities, such as extending the statute of limitations and providing forum access for insurance claims, [can] be invalidated under the foreign affairs doctrine in the absence of a conflict with federal policy or an indication of federal intent to preempt the field?"

Chadbourne & Parke LLP v. Troice (12-79), Willis of Colorado v. Troice (12-86), and Proskauer Rose LLP v. Troice (12-88) would ask overlapping questions about the Securities Litigation Uniform Standards Act. Chadbourne & Parke would ask whether SLUSA "precludes a state-law class action alleging a scheme of fraud that involves misrepresentations about transactions in SLUSA covered securities." Proskauer Rose would ask whether SLUSA precludes state-law class actions "only where the alleged purchase or sale of a covered security is ‘more than tangentially related' to the ‘heart, crux or gravamen' of the alleged fraud." Both cases would also ask whether SLUSA precludes class actions asserting that defendants aided and abetted SLUSA covered securities fraud when the defendants themselves did not make the alleged misrepresentations. And Willis of Colorado would ask "whether a covered state law class action complaint . . . nonetheless can escape the application of SLUSA by including other allegations that are farther removed from a covered securities transaction."

Last but not least, we would like to introduce you to our new co-author, Julie Loughran. Julie likely penned a number of the case summaries you enjoyed last Term, and we thought it was high time we added her to the official author roster.

The three of us look forward to following the new Term with you.

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