Here:
Supreme Court
News Profile of Cert Denial in Knight v. Thompson
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.
SCOTUS Denies Cert in Zepeda and Crow Allottees Matters
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.
Oral Argument Transcript in United States v. Bryant (and Commentary)
Here.
Background materials here.
Quick commentary:
This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117.
If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.
Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.
The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter).
Gila River Indian Community Letter to NACDL re: Bryant Amicus Brief
Here:
An excerpt:
I am writing to you to express the Gila River Indian Community’s concerns regarding the Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Experienced Tribal Court Litigators in Support of Respondent (“Brief’) recently filed with the Supreme Court of the United States in United States v. Bryant (No. 15-420). The Brief makes numerous attacks on the Community’s criminal justice system, hasty generalizations regarding tribal justice systems, and omits relevant facts and conclusions regarding the Community.
The stated purpose of the Brief is “to draw upon amici’s knowledge and experience with tribal-court criminal litigation to give this Court an informed perspective from which to assess these claims.” Brief at 4 (emphasis added). Unfortunately, the Brief does not do so. Instead, it reads as a narrative and anecdotal attack on tribal justice systems, prominently including the Community. These attacks on the Community’s criminal justice system have often come in a third-party form, such as letters from the National Association of Criminal Defense Lawyers and National Association of Federal Defenders to members of Congress regarding proposed legislation. Despite prominent mention of the Community, these letters- and the Brief-were not provided to the Community when sent or filed. We suspect it may have to do with the favorable outcomes to the Community in the cases discussed in the Brief.
Briefs and other materials in this case are here.
Cert Stage Briefs in Citizens Against Casino Gambling in Erie County v. Chaudhuri
Here:
Lower court materials here.
Turtle Talk 
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