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.

THE UNITED STATES v. ARIZONA - A LOOK AT THE QUESTIONS AND ARGUMENTS PRESENTED TO THE NINTH CIRCUIT COURT OF APPEALS

Arizona appealed Federal District Judge Susan Bolton's Order and Preliminary Injunction against parts of Arizona's SB 1070 law, the "Support Our Law Enforcement and Safe Neighborhoods Act." The district court preliminarily enjoined Arizona from enforcing sections 2(B), 3, 5(C), and 6 of the Act.

The matter in the Ninth Circuit began with a skirmish on whose rules would apply for the expedited appeal of Judge Bolton's Order. Arizona wanted a schedule that was more quickly paced than the normal rule, Ninth Circuit Rule 3-3, would allow. The Court of Appeals determined it was appropriate to implement Rule 3-3 in this matter.

Arizona claims that its citizens are suffering well documented and undisputed harm because of illegal immigration. The United States, according to Arizona's brief, has failed to effectively enforce federal immigration law. The purpose behind SB 1070, according to Arizona, is to "enhance the assistance Arizona and its law enforcement officers provide in enforcing federal immigration laws."

Arizona is claiming that the United States may not claim that enforcement of federal immigration law by a state is preempted by the federal government. Arizona says the federal government, in the past, has welcomed the assistance of state law enforcement efforts in arena of immigration law. Arizona's position is that Congress must expressly claim the preemption and that such a claim is not within the purview of the Department of Homeland Security.

Arizona's opening volley on appeal tells the Ninth Circuit that Judge Bolton erred in:

(1) misconstruing well-established principles of federal preemption law;

(2) disregarding its obligation to preserve the constitutionality of the Act’s provisions and to presume that Arizona will implement the provisions in a constitutional manner; and

(3) ignoring the United States’ burden on a facial challenge to show that the provisions of S.B. 1070 are unconstitutional in all of their applications... Instead, the district court granted the United States’ request for the extraordinary remedy of injunctive relief by accepting the United States’ speculation regarding the potential burden that enforcing sections 2(B), 3, 5(C), and 6 might impose on narrow categories of lawfully-present aliens in hypothetical and speculative scenarios, and the possible impact to DHS’s achievement of its newly-established objective, [emphasis by Appellants].

The Issues Presented on appeal by Arizona are:

1. With respect to the district court’s finding that the United States is likely to succeed on the merits of its claims that sections 2(B), 3, 5(C), and 6 are facially preempted, the issues presented are:

a. Whether the United States can demonstrate that section 2(B) is facially preempted based on the potential that enforcement of section 2(B) could burden certain lawfully-present aliens or federal resources, even though section 2(B) merely asks Arizona’s law enforcement officers to exchange information with ICE that Congress has expressly required ICE to receive and provide.

b. Whether section 3 stands as an obstacle to the achievement of current congressional objectives by mandating compliance with two specific federal immigration registration laws.

c. Whether Congress’ decision not to impose sanctions on employees who perform unauthorized work reflects a “clear and manifest” intent to prohibit states from doing so.

d. Whether the warrantless arrest provision in section 6 can be facially preempted based on speculation that Arizona’s law enforcement officers

might implement it in an unconstitutional manner.

2. With respect to the district court’s finding as to the non-merits factors,  the sole issue presented is whether it is in the public interest to prohibit Arizona from acting consistently with congressional objectives to address “the rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns” that the federal government has admittedly failed to address authoritatively.

The United States frames the issues as:

Whether the district court abused its discretion in preliminarily enjoining four provisions of an Arizona law that establish a nondiscretionary state immigration enforcement scheme that is not subject to the control or priorities of federal immigration authorities, and which

(1) makes it a state crime for an alien to violate provisions of federal law that require some aliens to complete and carry federal registration documentation;

(2) makes it a state crime for an unauthorized alien to seek or obtain employment;

(3) mandates all state and local officers to determine, as practicable, the immigration status of persons whom they stop or detain if there is reasonable suspicion that the person is an alien and unlawfully present in the United States, and to verify the immigration status of all persons arrested before they are released; and

(4) authorizes state officers to arrest without a warrant any person, including those who are lawfully present in the United States, when the officer has probable cause to believe that the person has at some point committed an offense that makes the person removable from the United States. 

Remember the standard of review the Court employs in review a facially unconstitutional challenge is the inconceivable standard.  Arizona is arguing that there must be some conceivable circumstance in which their statute is constitutional.  If it is inconceivable that the statute can be constitutionally applied then the facial challenge is sustained.

The United States is arguing that Judge Bolton did not abuse her discretion when she issued her Order and Preliminary Injunction. The United States' position is that Congress has "established a comprehensive framework that governs entrance and admission into the United States by foreign nationals, the consequences of illegal entry, and the procedures for removal and deportation of aliens from this country. Congress has also comprehensively regulated the employment of persons unlawfully present in the United States, and imposed a calibrated scale of civil and criminal penalties on employers who knowingly hire such persons, but declined to impose criminal penalties on such persons who seek or obtain employment."

This is a case where it is going to be easy to take your eye off the ball. The first hurdle the Court of Appeals will jump is whether Judge Bolton abused her discretion when issuing the Preliminary Injunction.

When issuing a preliminary injunction the trial court must apply a four part test. First the Plaintiff must show a reasonable likelihood that they will prevail on the merits of the case. Second, irreparable harm will occur absent the order. Third is a balancing test where the judge must find that less harm will accrue to the defendants if the Preliminary Injunction is issued compared to more harm accruing to the Plaintiffs if the Preliminary Injunction does not issue. Finally, that the public interest weighs in favor of the Plaintiff.

This appeal is narrowing its focus on the likelihood of the parties succeeding on the merits, the first prong of the test. Judge Bolton ruled in favor of the United States on this point. Arizona argues that it too can likely succeed on the merits. The stage is set for the Ninth Circuit to begin its review with the first prong of the four part test.