US Supreme Court review highlights decisions that raise more questions

July 26, 2017

During a panel discussion on the U.S. Supreme Court’s most recent term, retired Indiana Chief Justice Randall Shepard advised civil attorneys not to ignore the justices’ ruling in a criminal matter.

Shepard discussed the decision in Pena-Rodriguez v. Colorado, 15-606, as part of a seminar offered Tuesday in downtown Indianapolis by Faegre Baker Daniels LLP. The hour-and-a-half presentation examined select cases from the Supreme Court’s most recent term and highlighted issues which could return to the docket.

Brian Paul, appellate attorney at Faegre, moderated the discussion. The panelists were his colleagues at Faegre, business litigator Harmony Mappes and business litigator and appellate advocate Jane Dall Wilson, along with Shepard.

In reviewing Pena-Rodriguez, Shepard described the ruling as raising uncertainty.

The case involved the conviction of a man which was called into question following the trial after two jurors revealed to the defense that another juror had made derogatory remarks about the defendant’s race during deliberations. The pair of jurors subsequently signed affidavits but the trial court declined to accept them under Trial Rule 606, which prohibits jurors from giving evidence about their jury-room conversations.

Justice Anthony Kennedy wrote the majority opinion which held that while opening the door on jury deliberations would destroy the frankness and freedom of the discussions, statements about race are the exception.

Shepard noted two questions rise immediately from the decision. The first is how will trial courts handle allegations of racism during jury deliberations? The second is does this exception apply only to race? Shepard believes the exception to Rule 606 could also be applied to sexual orientation and gender.

“Seems to me Kennedy, at least on the face of it, is oblivious to the potential harm done to other litigants by advancing this rule,” Shepard said. “So that’s why I say … if civil lawyers think this is a criminal case, they should ask not for whom the bell tolls.”    

Another decision which could spawn more questions than answers is Murr v. Wisconsin, 15-214, that came from the 7th Circuit Court of Appeals. “This is an important property rights and takings case that is going to be appearing in law school textbooks soon,” Paul said.

The family members who owned two adjacent properties along a scenic river filed the lawsuit after they were prevented from selling one of the lots. Wisconsin state law required substandard adjoining properties with common ownership, such as the family’s land, to be merged but the members argued there had been a taking.

The Supreme Court focused on a denominator issue presented in the case. Kennedy, writing again for the majority, established a three-part test to determine the denominator for making a takings analysis. Using that test, the court found the family had suffered neither economic impairment nor a taking.

“As a citizen, it worries me,” Paul said of the ruling in Murr. “Lawyers are going to be able to argue these three factors until the cows come home. This is not so great for property owners. Obviously, they’re going to have to foot the bill for all this arguing and I think there’s going to be less certainty in terms of exactly what is the property they own that will be subject to a takings analysis.”

Likewise, Wilson is anticipating Trinity Lutheran Church v. Comer, 15-577, will spark more disputes. In this case, the Supreme Court ruled the Free Exercise Clause in the Constitution prevents states from denying a benefit to an organization simply because that entity is a religious institution.

Writing for the majority, Chief Justice John Roberts included a footnote that limited the decision to the focus of the dispute — recycled tire scraps used to resurface playgrounds. However, Justices Neil Gorsuch and Clarence Thomas argued the controlling principles of the majority’s opinion had universal applications. Justices Sonia Sotomayor and Ruth Bader Ginsburg slammed the court’s decision that required a state to give a public benefit to a religious organization.

“I would expect lots more litigation to follow,” Wilson said, “addressing what funding and support can be denied to religious institutions, including and especially in the school voucher scenarios.”

The Supreme Court dealt with gerrymandering in Cooper v. Harris, 15-1262 and will tackle the topic again in the 2017 term when it considers Gill v. Whitford, 16-1161. The central issue is whether the Republican-controlled Wisconsin Legislature violated the First Amendment and Equal Protection Clause by drawing the districts based on partisan gerrymandering, thus depriving Democrats the ability to elect a candidate of their choice.

Mappes called Gill a “hot case to watch.” This will be the first time in more than a decade that the Supreme Court has considered partisan gerrymandering. At that time, four of the justices concluded the court should never review these kinds of cases because there is no manageable standard. However, Mappes noted, Gill is hopeful it has a standard that can be used.


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