Thursday, October 13, 2011
October 11th Order List is in - USA v. Arizona has not yet gained certiorari - Court will consider cases where Circuits are split and States are split
The Court granted two more writs of certiorari October 11th. U.S.A. v. Arizona, the SB 1070 "papers please" case was not on this list. Neither was the writ denied, and the Court issued 12½ pages of cert denials in their order.
Two cases made the cut. Case Number 10-1042 is FREEMAN, TAMMY F., ET VIR v. QUICKEN LOANS, INC. We don't get a lot of "et vir" so I'll explain. Et vir is a Latin term meaning "and man" which through custom, practice, and usage translates to "and husband". Previously I wrote about the term "et uxor" which is often shortened to "et ux". Et uxor is shorthand for "and wife".
Tammy Freeman and her husband took out a mortgage from Quicken Loans. Quicken Loans charge a "loan discount fee" but did not accompany that with a reduction in the rate of interest being charged. Freeman contends that the Real Estate Settlement Procedures Act, (RESPA), required the reduction of the interest rate. Thus the Freemans contend that Quicken violated RESPA's §8b prohibition on undivided unearned charges.
The Circuit Courts are not in agreement. Quicken contends that there must be two or more persons or parties engaging in undivided unearned charge. The Fourth, Seventh, and Eighth Circuits have each held that RESPA § 8 is exclusively an anti-kickback provision, requiring two culpable parties, a giver and a receiver of the unlawful fee, rendering mark-ups by a sole services provider not actionable. The Second, Third, and Eleventh Circuits have rejected the two-party requirement and held that RESPA § 8(b) prohibits mark-ups. Only the Second Circuit has explicitly addressed whether RESPA § 8(b) prohibits a sole provider’s undivided unearned charges and found that it did.
In this case the Fifth Circuit has sided with the Fourth, Seventh, and Eighth Circuits.
The next case winning a writ of certiorari is Case Number 10-1320, BLUEFORD, ALEX v. ARKANSAS. Here we have a double jeopardy case. Blueford was charged with capital murder. The jury was given an instruction for a series of lesser included offenses. The jury reported that they were unanimous against the capital murder charge and the lesser included offense of first degree murder. The jury was deadlocked or hung on the manslaughter charge and therefore didn't reach a verdict on negligent homicide.
Blueford argues that double jeopardy bars his prosecution for capital murder or first degree murder. Arkansas has a different opinion and wants to redo the entire trial. At issue here will be analysis and interpretation of the bridge instruction. The bridge instruction told the jury to first consider the capital charge, which they did, and then go down the list of charges from most serious to least serious.
The Arkansas Supreme Court said that most States prohibit partial-verdict inquiries as to the lesser included offenses. Noting that a minority of States permit assigning double jeopardy protections in that setting, the Arkansas Supreme Court adopted the majority view.