Petitions of the Week
By Andrew Hamm
on April 2, 2021
at 12:44 p.m.
This week we’re highlighting certification filings asking the Supreme Court, among other things, to consider whether Indiana’s 14th or 26th amendment requires all voters regardless of age to vote absent from the mail and whether sovereign immunity of Tribes prevents a county in New York from foreclosure on parcels of a Native American tribe in the county jurisdiction on which the tribe has not paid property taxes.
Tully v. Okeson includes two constitutional objections to Indiana’s requirements for younger voters who wish to vote by mail. In Indiana, certain voters can vote by sending postal ballot papers, including voters who will not be in their constituency on election day and voters who are 65 years of age or older. In March 2020, ahead of the state primary, the Indiana Election Commission allowed all Indiana voters, regardless of age, to vote by postal mail. However, the Commission did not extend this policy for the November parliamentary elections. A group of voters under 65 applied for postal voting rights under two constitutional amendments. The 14th amendment prohibits unjustified encumbrances on the right to vote, and the 26th amendment protects the rights of voters aged 18 and over from age discrimination. The US Court of Appeals for the 7th Circuit ruled after the 26th amendment that Indiana’s practice did not deny younger voters the right to vote, only the privilege of voting by mail. In addition, the 7th Circle went on to say, this distinction does not violate the 14th Amendment because Indiana has a rational basis for its policies. In their petition for review, the younger voters argue that this decision conflicts with decisions made by other state and federal courts.
Seneca County, New York v. Cayuga Indian Nation of New York puts judges before tribal immunity and local taxation issues. For the past 25 years, the Cayuga Indian Nation of New York has bought land in the open market in Seneca County, New York. On the one hand, the tribe claims that the land was once part of their reservation; On the other hand, private owners have controlled the land for around 200 years. The tribe refused to pay property taxes, and when the county tried to foreclose some of the parcels, the tribe filed a lawsuit in federal court to start the county’s foreclosure proceedings on tribesmen’s immunity. In the decision below, the U.S. Circuit 2 Court of Appeals recognized that sovereign immunity does not prevent local jurisdictions from making claims to immovable property in their territory. However, Circuit 2 ruled that the immovable property exemption from sovereign immunity was not applicable as the foreclosure proceedings were essentially about tax enforcement, not property.
These and other petitions of the week are listed below:
Kansas Natural Resource Coalition vs. Home Office
Problems: (1) Whether a party confirming a procedural violation is not entitled, unless it can be certain that compliance with the procedural rules would change the outcome of subsequent actions by the Agency; and (2) whether under the strong presumption that a judicial review of the Agency’s actions may have been breached by the Agency Congressional Review ActThe requirement to submit rules is subject to judicial review.
Jooce v. Food and Drug Administration
Problems: (1) Can a regulation be ratified if the appointment clause prohibits the alleged agent from exercising decision-making power? and (2) whether, if so, the ratification must comply with the restrictions that would normally apply to the establishment of an official’s rules such as
Seneca County, New York v Cayuga Indian Nation of New York
problem: Whether tribal state immunity prevents local tax authorities from collecting legally imposed property taxes by foreclosing real estate that a tribe has bought in the open market.
Gatewood versus United States
Problems: (1) Is there any reason to apologize for the procedural deficiencies of a habeas petitioner when a near unanimous precedent has preceded the petitioner’s claim? and (2) whether there is any reason to apologize for a habeas petitioner’s malpractice if the Supreme Court expressly overrides any of its precedents.
Tully v. Okeson
Problems: (1) Does Indiana violate the 26th Amendment to the U.S. Constitution by allowing voters 65 and over to cast a postal vote, while otherwise identical voters ages 18 to 64 must cast their ballots in person? and (2) whether, in circumstances where personal voting is particularly dangerous, the Indiana postal voting scheme violates the 14th Amendment to the US Constitution by encroaching on the suffrage of voters ages 18 to 64.
Valentine v. Phillips
Problems: (1) Whether the U.S. Court of Appeals violated the 6th Circuit Federal Code of Civil Procedure 52 (a) (6) if it has failed to apply the reasonable, elevated and deferential standard to establishing the credibility of the District Court’s experts; and (2) whether the 6th Circle usurped gatekeeping of the district court appraiser when it found that the district court should have credited the appraiser’s testimony to Johnny Phillips – and upheld Phillips’ petition – simply because that testimony was not manifestly selfish or dishonest.