Here is “Why Native American Inmates Can’t Wear Their Hair Long in Alabama.”
cert petition
Snarky News Commentary about Pro-Football Inc.’s Cert Petition
Hey it’s Friday! 🙂
From Above the Law, here is “Redskins Lawyers Act Like Complete Jerks, Surprising Nobody.”
An excerpt:
As Alison Frankel of Reuters reports, the Redskins’ attorneys from Biglaw heavyweights Arnold & Porter and Quinn Emanuel Urquhart & Sullivan wrote:
“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”
The ATL piece is pretty snarky, but raises a few interesting points, about which I have no intention of being snarky.
If you’ve read cert pool memos, then you might know this is a thing. Clerks will assess the quality of a brief and the name recognition or lack thereof in analyzing whether to recommend a grant. A poorly written petition in a case that is otherwise certworthy may be denied while the Court waits for the better vehicle. The kind of candor from the Supreme Court bar in a cert petition, I would have thought, seems ripe for snarky commentary. But the “Team”‘s lawyers really are among the very best.
Also, “The Slants” are doing all this for the right to be be satirical. Not so the “Team”! These are very, very different postures. And surely the Court knows this.
Finally, trying to piece together the strategy here now that there appear to be only eight Justices for the foreseeable future. The Federal Circuit ruled in favor of “The Slants”, so IF there is a 4-4 ideological split on the Court on this issue (HUGE IF), then they prevail and Section 2(a) of the Lanham Act is unenforceable in the Federal Circuit. The “Team” lost at the district court level, and who knows what was going to happen at the Fourth Circuit, so they’re trying to short circuit the “Slants”, but for what purpose? Really, there’s no help for anyone at SCOTUS if there’s a 4-4 split. Unless the “team”‘s counsel suspects there’s not really a 4-4 split! Of course. I wonder what the strategy sessions have concluded in terms of each Justice. Surely there are the four First Amendment stalwarts that signed on to Citizens United and Hobby Lobby (the Chief, Kennedy, Thomas, and Alito), so which of the other four is likely to join?
Amicus Brief in Support of Shinnecock Indian Nation Land Claims Cert Petition
Pro-Football Inc. v. Blackhorse Cert Petition
Here.
Question presented:
The “disparagement clause” in § 2(a) of the Lanham Act bars the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a). The questions presented are:
1. Whether § 2(a)’s disparagement clause violates the First Amendment.
2. Whether § 2(a)’s disparagement clause is impermissibly vague, in violation of the First and Fifth Amendments.
3. Whether the government’s decades-long delay between registering a trademark and cancelling the registration under § 2(a)’s disparagement clause violates due process.
The Fourth Circuit matter is still pending. This is an effort to jump ahead of the process to join another petition currently pending captioned Lee v. Tam. We posted about that Federal Circuit decision here.
Pauma Band Cross-Petition in Gaming Compact Dispute with California
Here is the cert petition in Pauma Band of Luiseño Mission Indians of the Pauma & Yuima Reservation v. State of California:
Question presented:
One of the statutory elements for establishing a prima facie case of bad faith negotiation against a state under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., is that “a Tribal-State compact has not been entered into.” 25 U.S.C. § 2710(d)(7)(B)(ii)(I). In this case, the United States Court of Appeals for the Ninth Circuit interpreted this language according to the status quo ante, holding that an Indian tribe who sought and obtained a declaration rescinding a compact could not pursue a claim for latent bad faith negotiation against a state that induced the compact through material misrepresentations in order to increase its tax receipts (i.e., “revenue sharing”) by 2,460%. With this holding seeming to violate deep-rooted principles of retroactivity and interpretive norms for the Indian Gaming Regulatory Act set forth within this Court’s precedent, the question presented is:Whether an Indian tribe can pursue a bad faith negotiation claim against a state under Section 2710(d)(7)(A)(i) of the Indian Gaming Regulatory Act after rescinding a compact induced by misrepresentation or other latent bad faith conduct, and thus bringing its circumstances into compliance with the statutory requirement that “a Tribal-State compact has not been entered into.”
California’s petition is here.
Cert Stage Briefs in Citizens Against Casino Gambling in Erie County v. Chaudhuri
Here:
Lower court materials here.
Cert Stage Briefs in Zepeda v. United States
Lezmond Mitchell v. U.S. Cert Petition
Here:
Questions presented:
Petitioner, a Navajo, is a federal prisoner sentenced to death under the
Federal Death Penalty Act, 18 U.S.C. §§ 3591-3599. Petitioner’s statements to the
FBI constituted the primary evidence at his capital trial. The FBI took these
statements while petitioner spent twenty-five days in tribal custody, with no right
to the assistance of counsel. In a motion to vacate his sentence under 28 U.S.C.
§ 2255, petitioner presented evidence that a working arrangement between federal
and tribal authorities resulted in his arrest on a minor tribal charge, and kept him
in prolonged custody not authorized under Navajo Nation law, to deprive him of his
federal procedural rights. Petitioner also alleged ineffective assistance at the guilt
and penalty phases of his trial, and the depositions of his three trial attorneys
revealed serious contradictions regarding the investigations undertaken and
defenses pursued.
An evidentiary hearing is required in a Section 2255 case “[u]nless the
motion and the files and records of the cases conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In this case, the district court denied the
Section 2255 motion without a hearing, and a divided court of appeals affirmed.
The questions presented are:1. Whether the court of appeals, in conflict with the Eighth and Tenth Circuits’
grants of a hearing on similar records, erroneously concluded that petitioner
could not establish, under any circumstances, that his attorneys had
performed deficiently at the penalty phase of his trial.2. Whether the court of appeals clearly misapprehended Section 2255(b)’s
standards by viewing the facts in the light most favorable to the government,
weighing the evidence, and silently resolving factual disputes to conclude
that no evidentiary hearing was required.3. Whether the court of appeals erroneously concluded that reasonable jurists
could not debate whether an evidentiary hearing was warranted on
petitioner’s claim of federal-tribal collusion to deprive him of his rights to
prompt presentment and assistance of counsel.
Lower court decision.
Crow Allottees v. Dept. of Justice Cert Stage Briefs
Shinnecock Indian Nation v. New York Cert Petition
Here:
Questions presented:
Petitioner’s case is the last in a long line of Indian land claim cases arising in the State of New York in which Indian tribes have been denied access to the courts by the U.S. Court of Appeals for the Second Circuit. Cayuga Indian Nation v. Pataki,413 F.3d 266 (2d Cir. 2005); see also, Oneida Indian Nation v. County of Oneida, 617 F.3d 114 (2d Cir. 2010); Onondaga Nation v. New York, 500 F. App’x 87 (2d Cir. 2012); Stockbridge-Munsee Community v. New York, 756 F.3d 163 (2d Cir. 2014). Based on its Cayuga “laches” defense, the court of appeals summarily dismissed all claims of Petitioner for legal and equitable relief for the loss of their lands in violation of the Trade and Intercourse Act of 1790, also known as the Indian Non-Intercourse Act, 25 U.S.C. § 177. Recently, however, this Court affirmed the general rule in equity that courts may not override Congress’ judgment and apply laches to summarily dispose of all claims filed within a statute of limitations established by Congress, thereby foreclosing the possibility of any form of relief. Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1975 (2014). In Petrella, this Court recognized that only equitable remedies may be foreclosed at the outset of litigation due to delay in commencing suit in “extraordinary circumstances.” Id. at 1977. The questions presented are:
1. Whether at the outset of litigation a court may apply “laches” to foreclose an Indian tribe from bringing its federal statutory and common-law claims, *ii including one for money damages, if brought within the statute of limitations established by Congress.
2. Whether a court violates the Fifth Amendment’s Due Process and Takings Clauses when it retroactively applies a new, judicially-formulated rule to dismiss an Indian tribe’s viable claims ab initio, thereby extinguishing established property rights.
Lower court materials here.
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