Petitions of the day

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Petitions of the day

The petitions of the day are:

16-1519

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.

16-1524

Issues: (1) Whether an “informational injury” satisfies the article III standing requirement of real-world harm articulated in Spokeo v. Robins, where the plaintiff alleges at most a bare procedural violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681b; and (2) whether a bare procedural violation of a statute may be deemed “willful”—i.e. knowing and reckless—under Safeco Insurance Company of America v. Burr, where no risk of harm resulted from the alleged violation.

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Friday round-up

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Friday round-up

In The Economist, Steven Mazie reports that the Supreme Court’s entry-ban ruling on Wednesday was “a win for family members in Iran, Sudan, Somalia, Libya, Syria and Yemen seeking visas to visit relatives in America,” but “a loss for resettlement organisations that have already expended time, resources and energy planning for 24,000 aspiring refugees seeking shelter in America,” and that the court’s “above-the-fray perspective is the handiwork of a six-justice majority apparently seeking to dampen perceptions of the court’s politicisation.” At Talk Media News, Gary Gately reports that, according to advocates for refugees, the ruling “will endanger the lives of thousands of desperate people fleeing war, hunger, poverty and persecution.” At the ImmigrationProf Blog, Peter Margulies observes that “the Court left the door open to revisit its order once the Ninth Circuit rules on the government’s appeal of Judge Watson’s injunction,” and hopes “that the Ninth Circuit will uphold the district court on exempting refugee assurances from the EO, and the Supreme Court will then permit Judge Watson’s entire order to go into effect.”

Briefly:

  • At Above the Law, David Lat offers an “updated list of [Supreme Court] clerk hires for October Term 2018.”
  • The Associated Press reports that “Supreme Court Chief Justice John Roberts, once dubbed ‘disgraceful’ by President Donald Trump, said on Thursday that criticism from politicians won’t dissuade judges from doing their jobs.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro urges the Supreme Court to review a challenge to a “Maryland statute [that] bars felons from owning firearms, with no exception for someone whose rights had been restored,” arguing that a “decade-old, non-violent felony should not act as a scarlet letter, preventing a person from challenging a statute in court.”
  • In The Wall Street Journal, Jess Bravin serves up a smorgasbord of food puns while reporting on the operation of the Supreme Court’s cafeteria, noting that its new overseer, Justice Neil Gorsuch, “avoided signaling his culinary philosophy during confirmation hearings in April.”
  • At Reason’s Hit and Run blog, Damon Root observes that Attorney General Jeff Sessions’ recent embrace of civil asset forfeiture puts Sessions “on a collision course with Supreme Court Justice Clarence Thomas,” who recently stated in a statement respecting the denial of certiorari that the “legal justifications offered in defense of civil asset forfeiture … cannot be squared with the text of the Constitution.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petitions of the day

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Petitions of the day

The petitions of the day are:

16-1458

Issue: Whether the Federal Arbitration Act pre-empts a state law that dictates onerous terms and conditions which must be included in private arbitration agreements between physicians and patients, and invalidates all agreements that do not contain those terms and conditions.

16-1489

Issues: (1) Whether the Arizona Supreme Court erred in stretching the “overbreadth” test for facial unconstitutionality beyond the First Amendment context to strike down a bail restriction based on an application of the law not present in this case; and (2) whether the Arizona Supreme Court erred in applying heightened scrutiny—one standard among five used in the lower courts—to strike down a state regulatory measure that denies bail if a judge, after a full adversarial hearing, finds clear proof that the arrestee raped a child.

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Thursday round-up

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Thursday round-up

Yesterday the Supreme Court left in place a district judge’s ruling allowing entry into the United States by close relatives of people in the U.S., such as grandparents, but put a hold on the portion of the judge’s order that loosened the government’s restrictions on entry by refugees, pending disposition of the government’s appeal by the U.S. Court of Appeals for the 9th Circuit. Amy Howe covers the Supreme Court’s order for this blog. Additional coverage comes from Brent Kendall at The Wall Street Journal, Josh Gerstein at Politico, Adam Liptak in The New York Times, Richard Wolf at USA Today, Robert Barnes in The Washington Post, Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, Lawrence Hurley at Reuters, Pete Williams at NBC News, Ariane de Vogue at CNN, and Gary Gately at Talk Media News. In The Economist, Steven Mazie observes that the “paper-and-ink volley” in the parties’ briefs was not “fought in polite, lawyerly terms.” At Take Care, Joshua Matz argues that “[t]he Supreme Court is now a co-owner and co-author of the travel ban,” and that “with that position comes major institutional risk to the Supreme Court’s public legitimacy.”

Briefly:

  • In an op-ed in the Los Angeles Times, Ben Feuer argues that the “level of speculation, fear and dramatic suspense” sparked by Supreme Court retirement rumors “is a sign that the stakes of Supreme Court appointments are simply too high,” and endorses a proposal “that Supreme Court justices should serve 18-year terms, with a new judge appointed every two years.”
  • At Supreme Court Brief (subscription required), Tony Mauro reports on turnover at the U.S. solicitor general’s office, noting that [t]wo lawyers are leaving … for private practice, two have joined from private firms, and more departures and hires are likely before the fall term begins in October.”
  • In an op-ed for The Hill, Samuel Green weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, the “critical civil rights case” of “a cake artistnamed Jack Phillips who politely declined to create a wedding cake celebrating a same-sex marriage because of his Christian beliefs about marriage”; Green argues that “freedom-lovers of all political stripes and orientations should root for Jack in his struggle against tyranny.”
  • In an op-ed for The New York Times, Linda Greenhouse considers Trinity Lutheran Church of Columbia v. Comer, in which the justices held that “a church had a constitutional right to be considered on the same basis as secular institutions for a state grant to improve the safety of its preschool playground,” noting that the effect of an “odd” footnote seeming to limit the court’s holding “that doesn’t even speak for a majority of the nine-member court” “depends on what the lower courts make of it.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Court releases October calendar

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Court releases October calendar

The Supreme Court term that ended in late June may have lacked the high-profile cases found in many of the terms that preceded it, but the new term will have no shortage of blockbusters. Today the justices released the calendar for October’s oral arguments, which will include not only the dispute over President Donald Trump’s “travel ban” but also a major dispute over partisan gerrymandering, two immigration cases that have been scheduled for a second round of oral argument, and an important arbitration case in which the United States has switched sides and now supports the employers.

The headliner in the October calendar is the litigation over Trump’s March 6 executive order, which put a freeze on both new visas for travelers from six predominantly Muslim countries (Iran, Libya, Sudan, Somalia, Syria and Yemen) and the admission of refugees into the United States. Two lower courts had blocked the Trump administration from implementing the order, but on June 26 the Supreme Court reinstated the ban, allowing the government to enforce it against travelers and refugees who do not already have a genuine relationship with an individual or institution in the United States. That ruling kicked off another round of litigation over the scope of the June 26 order, culminating in an order earlier today in which the justices declined to disturb a Hawaii district judge’s definition of “close” relatives (which was more expansive than the government would have liked) but put on hold his definition of which refugees should be allowed to enter the country. In the oral argument on the “travel ban” scheduled for October 10, the justices will be reviewing the lower courts’ decisions barring the government from enforcing the order; the two cases – Trump v. Hawaii and Trump v. International Refugee Assistance Project – have been consolidated for one hour of oral argument.

On October 3, the justices will hear oral argument in Gill v. Whitford, in which they will review Wisconsin’s appeal from a decision by a three-judge federal district court striking down the state’s redistricting map, which was created by the Republican-controlled legislature after the 2010 census. The district court ruled that the map was the product of partisan gerrymandering – that is, the practice of drawing a legislative map to give one political party an advantage. In 2004, a deeply divided Supreme Court declined to weigh in on a partisan-gerrymandering challenge to Pennsylvania’s redistricting map. Four justices agreed that courts should never review partisan-gerrymandering cases because it is too hard to formulate a manageable standard, while four justices contended that courts should be able to review those cases. Justice Anthony Kennedy provided the crucial vote: He believed that the justices should stay out of the Pennsylvania case but left open the possibility that courts could review similar cases in the future.

On October 2, the justices will kick off their term with three arbitration cases, which have been consolidated for one hour of oral argument. In National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris, the justices agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve disputes between an employer and its employees through arbitration are enforceable under the Federal Arbitration Act. The NLRB – then represented by the Office of the Solicitor General – filed its petition for review in September 2016, before the presidential election in November. In late June of this year, the United States (but not the NLRB) filed a “friend of the court” brief supporting the employers, rather than the employees; the NLRB is likely to file its own brief in August.

The October 2 oral argument in the arbitration cases will be followed by a reargument of Sessions v. Dimaya, in which the justices will again consider whether the Immigration and Nationality Act’s definition of “crime of violence” – for which a noncitizen can be deported from the United States – is so ambiguous that it violates the Constitution’s bar on vague criminal laws. On October 3, the justices will hear oral argument for a second time in Jennings v. Rodriguez, in which they are considering whether immigrants who are detained have a right to appear in front of an immigration judge and seek their release after making payments to guarantee that they will appear at later proceedings in the same case. The court had only eight members when it heard oral argument in these cases for the first time; its late-June order setting the cases for a second round of oral argument suggests that the eight justices attempted to reach an agreement but were ultimately deadlocked, making the court’s newest justice, Neil Gorsuch, the key vote.

Here is a complete list of the cases slated for oral argument in October, with brief summaries of the cases not already covered above:

  • Epic Systems Corp. v. Lewis, National Labor Relations Board v. Murphy Oil USA and Ernst & Young v. Morris (October 2)
  • Sessions v. Dimaya (October 2)
  • Gill v. Whitford (October 3)
  • Jennings v. Rodriguez (October 3)
  • District of Columbia v. Wesby (October 4): Whether police officers who responded to a noise complaint and found late-night partiers at a vacant home had probable cause to arrest them for trespassing, when the partiers told the officers that they had been invited to the house and had no intention to trespass; and whether the police officers are entitled to qualified immunity.
  • Class v. United States (October 4): Whether a defendant who pleads guilty waives the right to challenge the constitutionality of the statute under which he was convicted.
  • Trump v. Hawaii and Trump v. International Refugee Assistance Project (October 10)
  • Hamer v. Neighborhood Housing Services of Chicago (October 10): Whether the federal rule governing extensions for appeals, which allows district courts to extend the deadlines for filing appeals by 30 days, is jurisdictional or instead a claims-processing rule.
  • National Association of Manufacturers v. Department of Defense (October 11): Whether challenges to a 2015 rule that defines the term “waters of the United States” for purposes of the Clean Water Act should be filed first in federal district court or a federal court of appeals.
  • Jesner v. Arab Bank (October 11): Whether the Alien Tort Statute, which gives federal district courts jurisdiction over civil lawsuits filed by non-U.S. citizens for wrongful acts that violate international law, allows lawsuits against corporations.

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Court hands each side a partial victory in dispute over scope of travel ban

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Court hands each side a partial victory in dispute over scope of travel ban

On the same day that it scheduled oral argument in the dispute over President Donald Trump’s March 6 executive order, the Supreme Court turned down a request by the federal government to clarify exactly what it meant when it said that individuals with a close family relationship could continue to apply for visas to enter the United States even while the freeze on new visas for travelers from six predominantly Muslim countries is in place. Today’s order left in place a ruling by a federal district judge in Hawaii that had defined the relationships more expansively than the government had wanted – to include, among others, grandparents and grandchildren. But the justices also put a portion of that lower-court ruling relating to refugees on hold while an intermediate federal appeals court reviews it.

The president’s March 6 order, often known as the “travel ban,” halted the issuance of new visas for travelers from six predominantly Muslim countries – Iran, Libya, Sudan, Syria, Somalia and Yemen – and temporarily suspended the admission of refugees into the United States. Two different lower courts blocked the government from implementing the order, but on June 26 the Supreme Court allowed the government to go ahead and enforce it, with an exception for travelers and refugees who have a “credible claim” of a genuine relationship with an individual or institution in the United States.

The Court’s June 26 order led to litigation over the scope of the exception. The Trump administration insisted that it extended to parents (and stepparents), spouses (and fiancés or fiancées), sons and daughters (as well as stepchildren and sons- and daughters-in-law), and siblings, but not to a broader group of relatives such as grandparents, grandchildren, aunts and uncles, siblings-in-law, nieces and nephews, and cousins. But U.S. District Judge Derrick Watson agreed with the state of Hawaii that the second and broader group of relatives also have the kind of “close” family relationship that should allow them to apply for visas even while the travel ban is in effect. The justices today denied the federal government’s motion to clarify which relatives can apply for a visa, leaving Judge Watson’s more expansive definition in place.

However, the justices did grant the government’s request to put another portion of Judge Watson’s ruling on hold while the government goes to the U.S. Court of Appeals for the 9th Circuit. Judge Watson had ruled that, for purposes of the June 26 order, the freeze on the admission of refugees would not apply to refugees for whom the federal government had already entered into an agreement with an agency to help the refugees with resettlement after they enter the United States. The government had argued that the judge’s ruling went too far, because a resettlement agency does not actually have a relationship with the refugees it is assisting until they arrive in the United States, and that the ruling effectively rendered the limits imposed by the March 6 order meaningless. Now the 9th Circuit will weigh in on whether such refugees have enough of a connection to the United States to come here. Notably, three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have put all of Judge Watson’s ruling (rather than simply the part involving refugees) on hold until the 9th Circuit can rule on the government’s appeal.

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Petitions of the day

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Petitions of the day

The petitions of the day are:

16-1406

Issues: (1) Whether the U.S. Court of Appeals for the 7th Circuit’s en banc majority opinion substantially departed from the Supreme Court’s precedents established by Monell v. Department of Social Services by authorizing the imposition of corporate liability on a prison medical provider under 42 U.S.C. § 1983 and the Eighth Amendment without requiring any evidence of either culpability for deliberate indifference on the part of the provider, or any causal connection between the provider’s alleged failure to implement the policy and the deprivation of federal rights; and (2) whether the U.S. Court of the Appeals for the 7th Circuit’s en banc majority opinion and its reliance on cases from the U.S. Court of Appeals for the 9th and 3rd Circuits, which deviate from the requirements of all other federal appellate courts on the standard of municipal liability under 42 U.S.C. § 1983 and the Eighth Amendment, as established by Monell, justifies review by the Supreme Court to reconcile those authorities and clarify that standard.

16-1454

Issue: Whether, under the “rule of reason,” the Government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any procompetitive benefits from the provisions to American Express.

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Wednesday round-up

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Wednesday round-up

Yesterday, Hawaii filed its response to the government’s request that the Supreme Court clarify its June 26 order partially reinstating the administration’s executive order on immigration, and the government filed a reply. Amy Howe covers these developments for this blog. Additional coverage comes from Lawrence Hurley at Reuters and Lyle Denniston at his eponymous blog, who reports that the state argued “that the current phase of that dispute should play out first in a lower appeals court.”  Subscript provides a graphic explainer of the travel-ban cases. At Just Security, Marty Lederman disputes the government’s contention in its reply brief that the connection between a foreign national and a United States person or entity “must be ‘substantial,’” calling “[t]hat adjective … a limitation of the SG’s own creation, one not found in the Court’s opinion.”

Briefly:

  • At Law.com, Tony Mauro reports that government lawyers argued in a sentencing memorandum yesterday that “[f]ive protesters who disrupted a U.S. Supreme Court session with shouts and songs in 2015 should be sentenced to prison time and barred from the grounds of the court for a year” and that the “justices ‘should not be subjected to drama-filled and politically charged speeches and theatrics in the courtroom.’”
  • At Empirical SCOTUS, Adam Feldman analyzes the recent cert-grant track records of “several Supreme Court repeat players” who in previous years “were much more successful than others in getting the Supreme Court to hear their cases.”
  • At the Center for Competitive Politics, Luke Wachob “discusses three consequences of an America without the Supreme Court’s landmark decision in Buckley v. Valeo,” and concludes that “[p]reserving Buckley is essential to protecting the First Amendment right to free speech.”
  • At Fix the Court, Gabe Roth examines the justices’ recusals during October Term 2016, noting that “the justices have recused themselves 204 times – 200 times at the cert. stage and four times at the merits stage,” attempting to “explain the reasoning behind the justices’ step-asides during the past term,” and recommending that the Supreme Court adopt “a software-based conflict-check system.”
  • In The National Law Journal (subscription or registration required), Tony Mauro reports on the justices’s summer activities, recapping “some of the remarks [they] have made off the bench since (or before) the court finished its business for the term in late June.”
  • At the Pacific Legal Foundation’s Liberty Blog, Christina Martin urges the Supreme Court to review a case in which the petitioners allege “that local governments violate the Takings Clause of the Constitution when they keep the surplus proceeds from tax sales.”
  • The University of California, Irvine Law School has posted a video of its 7th annual Supreme Court Term in Review.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Hawaii urges justices to deny motion for clarification on travel ban, and the government responds (U

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Hawaii urges justices to deny motion for clarification on travel ban, and the government responds (UPDATED)

(UPDATED: This post has been updated to include the government’s reply to Hawaii’s opposition, filed on Tuesday night.)

The state of Hawaii responded today to last week’s request by the Trump administration to clarify exactly who can enter the United States under President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” In a brief filed with the Supreme Court shortly before noon EDT, the state did not mince words as it urged the Supreme Court to leave in place a ruling by a federal judge that interpreted the scope of the March 6 order more expansively than the Trump administration had wanted.

The president’s March 6 order put a temporary freeze on both visas for travelers from six predominantly Muslim countries (Iran, Sudan, Somalia, Syria, Libya and Yemen) and the admission of refugees into the United States. After federal judges in Hawaii and Maryland blocked the federal government from implementing the order, the Trump administration went to the Supreme Court, which on June 26 allowed the order to go into effect but prohibited the government from enforcing the order against individuals who have a genuine relationship with an institution or person in the United States.

The justices agreed to hear oral argument in the fall on the merits of the lower courts’ rulings putting the March 6 order on hold. But meanwhile, the dispute over the order has shifted to another question: Which travelers and refugees should be allowed to enter the United States under the court’s June 26 order? In guidance issued in late June, the federal government indicated that the spouses (as well as fiancés and fiancées), parents and children (including by marriage) and siblings of U.S. citizens and permanent residents would be eligible to apply for visas to come to the United States. That definition prompted Hawaii to go back to court, arguing that the Trump administration did not go far enough.

U.S. District Judge Derrick Watson agreed with the state. In a ruling issued last week, Watson rejected the government’s narrower definition and concluded that grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins and siblings in law also have the kind of close family relationships that would allow a traveler from one of the six majority-Muslim countries to apply for a visa. Moreover, he added, the March 6 order would not apply to refugees for whom the federal government has entered into an agreement with a resettlement agency, because those refugees have a genuine relationship with a U.S. institution.

The federal government then returned to the Supreme Court, seeking to block Judge Watson’s most recent ruling from going into effect. In their response to the government’s filing, the state raised both substantive and procedural objections to last week’s motion. Describing the government’s argument that Watson’s order has “eviscerated” the Supreme Court’s June 26 ruling as “nonsense,” the state pointed out that even under the district judge’s more expansive reading of the June 26 ruling, the government will still be able to implement the March 6 executive order “against more than 85% of refugees” and can “exclude countless extended family members—second cousins, great aunts, and so forth—and other individuals who indisputably lack close relationships with American individuals and entities.”

Moreover, the state added, the government’s request to clarify the scope of the court’s June 26 order is “truly extraordinary” and (among other things) has no “basis in this Court’s settled procedures and precedents.” Instead, the state emphasized, any clarification should come from the lower courts rather than the Supreme Court.

Less than 12 hours after Hawaii filed its brief, the Trump administration pushed back with strong words of its own, telling the justices that Hawaii and the other challengers “seek to drain” the Supreme Court’s June 26 order “of meaning.” The federal government emphasized that under the challengers’ interpretation, the limits imposed on refugee admissions by the March 6 executive order would essentially be rendered ineffective, because they could not be implemented “as to virtually all refugee applicants who would have” otherwise entered the United States. And the government characterized the challengers’ position as to which family members should be allowed to enter the United States under the June 26 order as “a caricature of the standard this Court established”: The June 26 order indicated that the kinds of “close” relatives who are eligible to apply for visas should have relationships similar to those of the individual plaintiffs in these cases, such as a spouse or mother-in-law, but the challengers would go much further and allow all but “distant” relatives to enter the country.

The government was also sharply critical of the challengers’ suggestion that the justices should stay out of the dispute over their own June 26 order and instead allow the lower courts to weigh in first. It “makes no sense,” the government argued, for Hawaii to urge the Supreme Court not to act when the state itself was responsible for the emergency litigation to clarify the meaning of the justices’ June 26 order. The Supreme Court, the Trump administration emphasized, “is the only court that can provide definitive clarification” of what its June 26 order means. Moreover, the government added, waiting for the lower courts to act would “needlessly delay resolution of these issues and exacerbate the confusion and disruption already caused” by the district court’s ruling. At the very least, the government urged, the court should stay the district court’s ruling until the U.S. Court of Appeals for the 9th Circuit can review it.

Although the Supreme Court is officially on its summer recess, the justices could (and likely will) act soon on the government’s request.

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Petitions of the day

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Petitions of the day

The petitions of the day are:

16-1323

Issue: Whether Rule 16-308(E) of the New Mexico Rules of Professional Conduct is pre-empted with respect to federal prosecutors in the context of grand jury proceedings.

16-1450

Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding that New Mexico Rule of Professional Conduct 16-308(E)—which states that a prosecutor shall not “subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present clients unless the prosecutor reasonably believes,” among other things, that “the evidence sought is essential to the successful completion of an ongoing investigation or prosecution” and that “there is no other feasible alternative to obtain the information”—may be applied to federal prosecutors serving subpoenas outside the grand jury context.

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