Petitions of the week: Telework taxation, a Kentucky abortion law, background checks at traffic stops and more


Posted Fri, December 4th, 2020 4:31 pm by Andrew Hamm

This week we highlight cert petitions — and one original action — that ask the Supreme Court to consider, among other things, whether Massachusetts may tax New Hampshire teleworkers, whether Kentucky’s attorney general may step in to defend a Kentucky abortion restriction, and whether police officers at traffic stops may conduct criminal-records checks even when they are not concerned about their safety.

The Supreme Court is a court “of review, not first view” — except in a limited set of cases that fall under the court’s original jurisdiction, most notably controversies between two or more states. New Hampshire v. Massachusetts presents the justices with a tax dispute brought on by the coronavirus pandemic. In April, Massachusetts adopted a temporary emergency regulation that subjected nonresident income for services performed outside Massachusetts to the state’s income tax. (Massachusetts has since adopted the regulation as a final rule.) New Hampshire’s bill of complaint offers the example of a New Hampshire resident who used to commute to Boston but has worked at home since the pandemic began. Massachusetts seeks to tax that worker’s entire salary, even though the work has been performed entirely in New Hampshire for most of the year. New Hampshire argues that the Massachusetts tax violates its state sovereignty.

In Cameron v. EMW Women’s Surgical Center, P.S.C., the justices face a procedural question that arises in the context of abortion. In 2018, Kentucky passed a near-ban on an abortion procedure known as dilation and evacuation, which is commonly used for abortions after the first trimester. The EMW Women’s Surgical Center sued, and Kentucky’s health secretary defended the law in court. A district court struck down the law, relying on Whole Woman’s Health v. Hellerstedt, a 2016 decision involving Texas abortion regulations. After the U.S. Court of Appeals for the 6th Circuit affirmed this decision, the secretary decided not to pursue any further appeals. Daniel Cameron, who was elected as Kentucky’s attorney general in 2019, moved to intervene in the case in order to challenge the 6th Circuit’s ruling, but the 6th Circuit denied his request to intervene. Five days later, the Supreme Court decided June Medical Services LLC v. Russo, a 2020 decision that struck down Louisiana abortion regulations, though Chief Justice John Roberts’ concurring opinion arguably limited aspects of Whole Woman’s Health. In his petition, Cameron argues that he should have been allowed to intervene to defend the Kentucky law and that the 6th Circuit’s decision striking it down should be reconsidered in light of June Medical.

Another case from Kentucky, Carlisle v. Kentucky, involves a criminal-records check that a police officer performed after pulling over a truck with tinted taillights and a loud exhaust. After explaining the basis for the stop, the officer collected identification from the driver and a passenger and searched their names in a police database. This computer check revealed that the driver’s license was suspended and set in motion events that uncovered evidence of drug trafficking for which the passenger, Rodney Carlisle, ultimately received a 20-year sentence. Carlisle argues that the records check violated the Fourth Amendment because officers may conduct such checks only for safety reasons — and the officer here was not concerned for his safety. In the decision below, the Supreme Court of Kentucky held that officers are entitled to conduct such checks during every stop. Carlisle asks the justices to resolve a split among the lower courts and to reject a categorical rule in favor of a case-by-case approach based on officer safety.

These and other petitions of the week are below:

New Hampshire v. Massachusetts
Issue: Whether Massachusetts’ tax rule — which subjects nonresident earned income received for services performed outside Massachusetts to the state’s income tax — is unconstitutional confiscation.

Minerva Surgical Inc. v. Hologic Inc.
Issue: Whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.

Smith v. McKinney
Issue: Whether a court determining if a prisoner has suffered an “atypical and significant” hardship must consider factors such as the duration of and justification for the particular conditions imposed (as several courts of appeals have held), or whether it can confine its analysis to a comparison of the conditions of other prison populations (as the court below held, joining several other courts of appeals).

Trump v. City of San Jose, California
Issues: (1) Whether the relief entered — a three-judge district court declared that the president’s memorandum, which instructed the secretary of the Department of Commerce to include within his census report information enabling the president to implement a policy decision to exclude people living in the country illegally from the base population number for congressional apportionment, was unlawful and enjoined the secretary from including the information in his report — satisfies the requirements of Article III of the Constitution; and (2) whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.

Carlisle v. Kentucky
Issue: Whether the Fourth Amendment permits law enforcement to prolong every traffic stop by performing a criminal history check, or whether the Fourth Amendment requires a case-by-case approach that permits such checks when the government offers some evidence that the measure actually related to officer safety.

Tabb v. United States
Issues: (1) Whether courts may defer to Sentencing Guidelines commentary without first determining that the underlying guideline is genuinely ambiguous; and (2) whether the U.S. Sentencing Commission can use commentary to rewrite a guideline that applies to “prohibit[ions]” on the “distribution” of drugs to apply to conspiracies and attempts to distribute drugs.

Wainwright v. Sexton
Issues: (1) Whether federal courts can award habeas relief based on errors in state-postconviction proceedings; and (2) whether, if errors in state-postconviction proceedings sometimes provide a basis for habeas relief, a habeas petitioner can win relief based on such errors even if he did not diligently pursue the proceedings in which the errors occurred.

Cameron v. EMW Women’s Surgical Center, P.S.C.
Issues: (1) Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law; and (2) whether, if so, the Supreme Court should vacate the judgment below and remand for further consideration in light of June Medical Services, L.L.C. v. Russo.

Clifford v. Trump
Issue: Whether the Texas Citizens’ Participation Act applies in federal-court diversity-jurisdiction cases under Erie R.R. Co. v. Tompkins.

Hologic Inc. v. Minerva Surgical Inc.
Issue: Whether an assignor of a patent may circumvent the doctrine of assignor estoppel by challenging the validity of the assigned patent in administrative proceedings before the Patent Office, and then using the Patent Office’s finding of invalidity to collaterally estop the assignee from relying on the patent in infringement litigation in district court.

Posted in New Hampshire v. Massachusetts, Minerva Surgical Inc. v. Hologic Inc., Smith v. McKinney, Trump v. City of San Jose, California, Carlisle v. Kentucky, Tabb v. U.S., Wainwright v. Sexton, Cameron v. EMW Women’s Surgical Center, P.S.C., Clifford v. Trump, Hologic Inc. v. Minerva Surgical Inc., Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Telework taxation, a Kentucky abortion law, background checks at traffic stops and more, SCOTUSblog (Dec. 4, 2020, 4:31 PM),

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