Supreme Court set for another blockbuster term

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WASHINGTON – With attorneys still analyzing the health care ruling and the other big decisions from last term, the U.S. Supreme Court is preparing for a new term with even more major issues on its docket, from affirmative action to the standards of proof for class certification.

And the justices’ docket isn’t even full yet – they could add cases involving the Defense of Marriage Act and California’s voter-approved same-sex marriage ban to their already packed to-do list.

Here are some of the cases that could have a big impact in the upcoming term:

Class-action standard: Comcast v. Behrend

In the wake of rulings on class action certification standards and the use of mandatory arbitration clauses that made bringing class-wide claims trickier than ever for plaintiffs, the Court will wade into the issue once more in October when it takes up Comcast v. Behrend.

In that case, the justices will consider whether plaintiffs must submit proof, including expert testimony, that a case is susceptible to awarding damages on a class-wide basis before it can be certified as a class.

The 3rd Circuit ruled that expert proof was not necessary as long as plaintiffs can offer some evidence of measurable damages. The Supreme Court agreed to take up the case in June and will hear oral arguments on Nov. 5.

Lawyers say the damages issue has been problematic for litigators.

“It’s such a huge issue that the courts have been struggling with,” said Sean P. Wajert, a partner in the Philadelphia office of Shook, Hardy & Bacon and author of the Mass Tort Defense blog.

While some plaintiff’s-side attorneys argue that adding such a standard of proof at the early stages of litigation essentially amounts to a trial before the trial, defense attorneys say requiring that proof could save courts and parties from engaging in lengthy and costly litigation only to find that the plaintiffs, even if their claims are meritorious, can’t be compensated.

“If you have a large class you are going to have discovery issues, you may have factual disputes, you will have another mini-trial [at the end] on the issue of damages. Where’s the efficiency in that?” said Wajert.

Affirmative action and employment: Fisher v. University of Texas at Austin

Not only will the Court’s ruling in Fisher v. University of Texas at Austin have a major impact on the way educational institutions select students, but attorneys say the case will also have employment law implications.

On Oct. 10 the Court will hear arguments over the admissions policy at the University of Texas at Austin. The policy was changed to allow the consideration of race as one of many factors after the Court’s decision in the 2003 case Grutter v. Bollinger upholding a similar policy at the University of Michigan Law School.

Two students who were denied admission to the University of Texas filed Equal Protection challenges, but the 5th Circuit ruled in the school’s favor.

The Court granted certiorari in February.

The justices’ ruling could reach beyond the educational realm and impact Title VII claims. At least one justice – Justice Antonin G. Scalia – indicated his willingness to rule that the Equal Protection Clause invalidates Title VII’s disparate impact provisions in his concurrence in Ricci v. DeStefano, a 2009 employment bias case involving New Haven firefighters.

“In Fisher the Court could decide, or set off on the road to ultimately deciding, if portions of Title VII are unconstitutional – particularly if Title VII permits affirmative action programs and requires employers to be analyzing their workforces and taking certain actions to avoid certain disparate impacts,” said David J. Goldstein, a shareholder in the Minneapolis office of the employment law firm Littler Mendelson. “That the most drastic possible resolution of this case.”

Padilla retroactivity: Chaidez v. U.S.

In Chaidez v. U.S., the Court will consider whether its 2010 holding in Padilla v. Kentucky, which requires criminal defense attorneys to warn non-citizen clients if a guilty plea carries a risk of deportation, applies retroactively.

Since the Padilla ruling, state and federal courts have split on whether it applies to cases that preceded it. In Chaidez, the Supreme Court will decide whether Padilla announced a new rule – which would mean it applies only prospectively – or clarified an existing rule, which would permit retroactive application.

Elizabeth B. Wydra, chief counsel for the Washington-based Constitutional Accountability Center, who wrote an amicus brief in the case, said attorneys have been awaiting this answer ever since the Padilla ruling.

“It is very significant for people who have been given improper legal counsel on [the] deportation consequences of their pleas,” Wydra said. “The volume of claims that we have seen after Padilla has really brought to light the importance of this.”

Oral argument is scheduled for Oct. 30.

Wrongful acquittals: Evans v. Michigan

On Nov. 6 the justices will take up Evans v. Michigan, which asks whether a wrongfully acquitted defendant can be retried.

The case involves a defendant who was accused of burning down a vacant building and charged with arson under Michigan law. During the defendant’s trial, the judge, on a motion brought by the defense, erroneously ruled that the prosecution was required to present proof that the burned house was not a dwelling – something that is not a required element of the state statute.

Based on the erroneously added element to the offense, the court granted the defendant’s motion for a directed verdict and entered an order of acquittal.

The prosecution appealed and the Michigan Court of Appeals reversed, holding that an actual acquittal occurs, for double jeopardy purposes, only when the trial court’s action is a resolution of a factual element necessary for a criminal conviction. Because in the instant case the court hadn’t resolved such a factual element, double-jeopardy principles did not bar retrial. The Michigan Supreme Court agreed, and affirmed the ruling. The Supreme Court granted certiorari in June.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., said that the Court has a chance to bring more parity to this area of criminal procedure.

“The Double Jeopardy Clause has long created an imbalance at the trial level where judges can be reversed for making an error in the prosecution’s favor, but not in the defendant’s favor,” Scheidegger said.

Passing the sniff test: Florida v. Harris

On Oct. 31, the Court will hear oral arguments in the dog-sniffing Fourth Amendment case of Florida v. Harris, which considers whether probable cause for a motor vehicle search is established by an alert from a certified police narcotics-detecting canine.

The defendant in the case tried to exclude the evidence from trial, arguing that it should have been suppressed because the prosecution failed to introduce sufficient evidence to establish that the dog’s alert was reliable.

The Florida Supreme Court ruled that “evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog’s reliability for purposes of determining probable cause.”

Instead, the state must present training and performance records, evidence of officers’ experience with the dog, as well as any other objective evidence known to the officer about the dog’s reliability. Because the state failed to meet that burden, the court held, the evidence should have been suppressed.

Same-sex marriage cases on tap

Petitions for certiorari in two cases that raise constitutional issues involving same-sex marriage are already waiting for the justices when they return at the end of September.

In one, Bipartisan Legal Advisory Group v. Gill, Republican lawmakers have asked the Court to take up a 1st Circuit ruling holding that the Defense of Marriage Act, which denies federal benefits to same-sex married couples, violates the Equal Protection Clause as well as principles of federalism.

The plaintiffs challenging the law were residents of Massachusetts, which recognizes same-sex marriage. They claimed that the federal law denied them benefits that other residents would be entitled to, despite the fact that their marriages were equally valid under state law, and the 1st Circuit agreed.

In a case from the West Coast, Hollingsworth v. Perry, proponents of California’s Proposition 8, a referendum outlawing same-sex marriage in the state, have asked the Court to consider whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.