Legislative intervention to defend a law

WATCH RELISTS

By John Elwood

on 11/17/2021
at 1:58 p.m.

Relist Watch column examines certificate requests that the Supreme Court has “reopened” for its upcoming conference. A short explanation of Relists can be found here.

The Supreme Court continues to toss through its reopened cases. On Monday the court had two more. Good news for petitioner Robyn Morgan: the judges ruled they wanted Taco Bell – or at least they wanted this Taco Bell employee’s petition in Morgan against Sundance, Inc., 21-328, alleging that the US – 8th District Court of Appeals incorrectly applied a higher standard for proving that a defendant waived arbitration than it did for other contractual clauses. But it was bad news for Volkswagen when the court refused to consider its two petitions, arguing that the Clean Air Act was preventing state and local governments from regulating updates to vehicle emissions systems by automakers after the sale, which re-listed twice Volkswagen Group vs. Environmental Protection Commission of Hillsborough County, 20-994, and Volkswagen Aktiengesellschaft v. Ohio, ex rel. Jost, 21-312. What is the opposite of driving pleasure?

The judges added just one new case to the list this week: Berger v NAACP’s North Carolina State Conference, 21-248. The case examines the ability of North Carolina lawmakers to step in to defend the state electoral identification act against lawsuits under the constitution and the suffrage law. After the NAACP’s North Carolina State Conference (and several local NAACP branches) challenged the bill, the Senate President pro tempore and the House Speaker (both Republicans) tried to intervene as state agents under state law. The district court unscathed, noting that the attorney general (a Democrat) was already defending the case on behalf of the state and believed that the state’s defendants would adequately defend the law. Six weeks later, Legislative Chairs re-petitioned for intervention, arguing, in part, that the Attorney General had not vigorously defended the law. The district court again refused to intervene. A panel of the U.S. 4th District Court of Appeals ruled that the District Court had misused its discretion by denying the legislative leaders ‘renewed appeal, overturning the District Court’s order, and re-examining the leaders’ request. But the 4th District later upheld the District Court’s rejection of the legislature’s attempt on the grounds that the Attorney General was adequately defending the law.

In their petition, the legislators argue that the courts of appeal disagree as to whether a legislator who wants to intervene in a case under state law has to prove that the interests of the state are not adequately represented. They also claim that the courts disagree on what standard of review should apply to a decision on a request for legal intervention. They continue to argue that the attorney general is not adequately defending the law. The state defendants filed a brief counter-certification, and the NAACP defendants waived their right to respond. While the court could grant a review without requiring a response from all defendants, the more common practice of the court is to ask all defendants for responses before granting a review. So there may be more to come here. [Disclosure: My law firm, Arnold & Porter, is among the counsel to the NAACP in this case.]

That’s all on the Relist front for this week. We’ll probably be free next week because the court won’t be holding a conference next week over Thanksgiving. It’s still early, but everywhere you see people from the north in red suits with white fur trimmings who decide who was “naughty” or “nice”. I am speaking of the Canadian Supreme Court, of course.

Stay safe!

New Relist

Berger v NAACP’s North Carolina State Conference, 21-248
subjects: (1) Whether a state agent who is empowered to defend the interests of the state in litigation under state law must overcome the presumption of fair representation in order to intervene legally in a case in which a state official is a defendant; (2) whether the determination of adequate representation by a district court when deciding on an application for intervention by law is de novo or for abuse of discretion; and (3) whether petitioners Philip Berger, President pro tempore of the State Senate, and Timothy Moore, Speaker of the State House of Representatives, have the legal right to intervene in this dispute.
(resumed after the November 12th conference)

Returning relists

Arlene’s Flowers Inc. v Washington, 19-333
subjects: (1) Whether a state violates a floral designer’s rights to free movement and expression by forcing them to attend same-sex weddings and create bespoke floral art, or by acting on the basis of hostility to their religious beliefs; and (2) whether the prohibition of religious hostility in the free exercise clause also applies to the executive branch.
(certiorari petition resumed after the conferences of January 10, 2020, January 17, 2020, January 24, 2020, February 21, 2020 and June 24, 2021; resumption of the petition after the conferences of September 27, 2021, Oct. 8 , Oct. 15, Oct. 29, Nov. 5 and Nov. 12 Conferences)

Knight v. Pennsylvania, 20-7805
problem: Whether a state can require a defendant to provide an IQ score of 75 or less that “prior to the 18th clinical standards for diagnosis and contrary to several Supreme Court rulings in which the Supreme Court petitioners who lacked such documentation , Has granted discharge.
(resumed after the October 29, November 5 and November 12 conferences)

Holcombe v Florida, 21-53
subjects: (1) Whether a criminal defendant creates an “actual” conflict of interest that adversely affects attorney’s representation when the attorney represents “jointly and twice” – that is, simultaneously representing the defendant and a key prosecution witness during a trial; (2) whether the standard “presumed disadvantage” of conflicts of interest applies if the public prosecutor (and not the defense counsel) informs the trial judge at the beginning of a trial of a conflict of interest of the defense counsel – a conflict which is described by the public prosecutor as “indispensable” – and the judge then fails to investigate the nature and extent of the conflict.
(resumed after the October 29, November 5 and November 12 conferences)

Trustee of the New Life in Christ Church v. City of Fredericksburg, 21-164
subjects: (1) Whether civil authorities violate the First Amendment in using their own interpretation of Church Doctrine to override a church’s designation that a particular official is a minister, and if so, whether summary repeal is appropriate ; (2) whether the Supreme Court in the alternative given Fulton versus City of Philadelphiabecause Virginia added a “system of individual exemptions” to its property tax law, and the city “cannot refuse to extend it.” [exemption] System too [the Church] without compelling reason. ‘”
(rescheduled before the October 8th and 15th conferences; rescheduled after the October 29th, November 5th and November 12th conferences)

Legislative intervention to defend a law