Petitions of the week: Telework taxation, a Kentucky abortion legislation, background checks at visitors stops and extra

Symposium: The individual plaintiffs in California v. Texas suffer a greater Article III injury than did the individual plaintiffs in NFIB v. Sebelius

Posted Fri, Dec 4th 2020 4:31 pm by Andrew Hamm

This week we’re highlighting certification filings – and a quirky lawsuit – asking the Supreme Court to review, among other things, whether Massachusetts can tax teleworkers in New Hampshire, whether Kentucky’s attorney general can intervene to defend an abortion restriction in Kentucky, and whether police can stop traffic Criminal records checks are carried out even if they are not concerned about their safety.

The Supreme Court is a court that “does not examine at first sight” – except in a limited number of cases that fall under the original jurisdiction of the court, in particular disputes between two or more states. New Hampshire v Massachusetts is facing judges in a tax dispute sparked by the coronavirus pandemic. In April, Massachusetts passed a temporary emergency arrangement that made non-resident income for services provided outside of Massachusetts subject to state income tax. (Massachusetts has now finalized the ordinance.) The New Hampshire complaint includes the example of a New Hampshire resident who used to commute to Boston but worked at home since the pandemic began. Massachusetts tries to tax this worker’s entire salary, even though the work has been done entirely in New Hampshire for most of the year. New Hampshire argues that the Massachusetts tax violates its state sovereignty.

In Cameron v EMW Women’s Surgical Center, PSC, judges face a procedural issue related to abortion. In 2018, Kentucky passed a near-ban on an abortion procedure known as dilation and evacuation, which is commonly used for abortions after the first trimester. The EMW Women’s Surgical Center sued and Kentucky’s Minister of Health defended the law in court. A district court knocked the law down, relying on Whole Woman’s Health v Hellerstedt, a 2016 ruling that affects Texas abortion regulations. After the U.S. Circuit 6th Circuit Court of Appeals upheld this decision, the Secretary decided not to appeal. Daniel Cameron, who was elected Attorney General of Kentucky in 2019, stepped into the case to challenge the 6th Circle’s decision, but the 6th Circle denied his request for intervention. Five days later, the Supreme Court ruled June Medical Services LLC against Russo, a 2020 ruling that repealed Louisiana’s abortion laws, despite the consensus of Chief Justice John Roberts appearing to be damaging aspects of the health of whole women. In his petition, Cameron argues that he should have stepped in to defend Kentucky law and that the 6th Circle’s decision to put it down should be reconsidered in the light of June Medical.

Another case from Kentucky, Carlisle v. Kentucky, concerns a criminal record check carried out by a police officer after running over a truck with tinted taillights and a loud exhaust pipe. After the officer had explained the basis for the stop, he collected ID from the driver and front passenger and looked up their names in a police database. This computer check revealed that the driver’s license had been suspended and activated, revealing evidence of drug trafficking for which passenger Rodney Carlisle eventually received a 20-year prison sentence. Carlisle argues that the file review violated the fourth amendment because officers are only allowed to do such reviews for security reasons – and the officer here was not concerned for his safety. In the ruling below, the Kentucky Supreme Court ruled that officials are entitled to conduct such checks at each stop. Carlisle urges the judges to resolve a split between the lower courts and reject a categorical rule in favor of a case-by-case approach based on the safety of officials.

These and other petitions of the week are listed below:

New Hampshire versus Massachusetts
problem: Whether or not the Massachusetts tax rule that makes non-resident income for services provided outside of Massachusetts subject to state income tax is unconstitutional.

Minerva Surgical Inc. v Hologic Inc.
problem: Whether a defendant in a patent infringement suit who has assigned the patent or is in contact with an assignee of the patent can have a negotiated disability defense.

Smith versus McKinney
problem: Whether a court determining whether a prisoner has suffered “atypical and substantial” hardship must consider factors such as the duration and justification of the particular conditions (as several appellate courts have found), or whether it can limit its analysis to a comparison of the Conditions of other prison populations (as the court below found and joined several other appeals courts).

Trump versus City of San Jose, California
Problems: (1) Whether the relief has occurred – a district court with three judges explained the president’s memorandum instructing the Secretary of the Commerce Department to include information in his census report that would enable the president to make a political decision to expel individuals meet who live in land illegally deducted from the base population for the division of Congress was illegal and requested the secretary to include the information in his report – meets the requirements of Article III of the Constitution; and (2) whether the memorandum is a permissible exercise of the President’s discretion under the provisions of the Act on the Division of Congress.

Carlisle v. Kentucky
problem: Whether the fourth amendment will allow law enforcement agencies to extend any traffic obstruction through a criminal investigation, or whether the fourth amendment will require a case-by-case approach that allows such reviews if the government provides evidence that the measure is actually related to the official’s safety.

Tabb versus United States
Problems: (1) Whether courts can postpone comment on the sentencing guidelines without first realizing that the underlying guideline is really ambiguous; and (2) whether the US Penal Commission can use comments to rewrite a policy that applies to “Prohibition”[ions]About the “distribution” of drugs on conspiracies and attempts to distribute drugs.

Wainwright v. Six tone
Problems: (1) Whether federal courts can grant habeas relief due to errors in post-conviction proceedings; and (2) if errors in post-conviction proceedings sometimes provide a basis for habeas relief, a habeas petitioner can gain relief on the basis of such errors even if he fails to follow the trial in which the errors arose carefully followed up.

Cameron v EMW Women’s Surgical Center, PSC
Problems: (1) Should an attorney general empowered to defend state law be allowed to intervene after a federal appeals court invalidates a state law when no other state actor is going to defend the law? and (2) whether the Supreme Court should overturn the following judgment in this case and refer it back to Russo for further consideration in the light of June Medical Services, LLC.

Clifford v. Trump
problem: Whether the Texas Citizens’ Participation Act applies in cases of diversity jurisdiction in federal courts under Erie RR Co. v. Tompkins.

Hologic Inc. v Minerva Surgical Inc.
problem: Whether a patent applicant can circumvent applicant’s doctrine estoppel by questioning the validity of the assigned patent in administrative proceedings before the patent office and then using the patent office’s declaration of invalidity to safely prevent the applicant from relying on the patent in Infringement proceedings before the district court.

Posted in New Hampshire v Massachusetts, Minerva Surgical Inc. v Hologic Inc., Smith v McKinney, Trump v City of San Jose, California, Carlisle v Kentucky, Tabb v US, Wainwright v Sexton, Cameron v EMW Women’s Surgical Center, PSC, Clifford v Trump, Hologic Inc. v Minerva Surgical Inc., Featured, cases in the pipeline

Recommended citation:
Andrew Hamm, Petitions of the Week: Telework Taxation, a Kentucky Abortion Act, Background Checks at Traffic Stops, and More,
SCOTUSblog (December 4, 2020, 4:31 pm), – on-traffic-stops-and-more /