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How Gorsuch Might Impact MI Cases Petitioning For Supreme Court Hearings

March 28, 2017

Courtesy of MIRS News

As U.S. Supreme Court nominee Neil GORSUCH undergoes his third day of confirmation hearings, three prominent suits that originated in Michigan are petitioning the nation’s highest court to have their cases heard.

Gorsuch has a firmly established record as a conservative jurist, and the record of his ruling may offer some insight into how he might view the cases.

Does #1-5 et al v. Snyder et al

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati, in August 2016, upheld a district court ruling that the 2006 and 2011 additions to Michigan’s Sex Offender Registry Act could not be applied retroactively to offenders who were placed on the registry before the changes were made.

They ruled, in part, that its retroactive application violated the Ex Post Facto Clause of the U.S. Constitution. Attorney General Bill SCHUETTE applied to have the full court hear the appeal and was denied, and has now filed a petition for writ of certiorari at the Supreme Court. Meanwhile, the state is facing a growing body of litigation from offenders who want the newer registry requirements lifted.

A federal district court judge in Detroit recently issued an injunction, preventing authorities from enforcing the requirements against a Royal Oak woman.

Gorsuch, who serves on the Tenth Circuit in Denver, ruled differently on a case in 2010 that bears some similarity.

In John Doe v. Mark Shurtleff, a Utah man who was placed on that state’s registry was required to release all his online identifying information to authorities. He argued in part that the obligation was an ex post facto violation because it was applied retroactively to him. In an opinion Gorsuch joined, the court ruled the requirement was a civil and not criminal obligation and was not protected by the clause.

But there are large differences between this case and Does #1-5. Michigan’s amendments to their registry restricted offenders from being near schools, and made them provide authorities with information about the cars they drove and the email accounts they used, punishments that were significantly more stringent than Utah’s.

Still, the court ruled the disclosure of that information was a criminal penalty, in conflict with the Tenth Circuit. Federal appellate Judge Alice BATCHELDER, a George W. BUSH appointee, ruled it is dangerous to permit the government “under guise of civil regulation to punish people without prior notice,” which may make Gorsuch inclined to clarify the difference.

Mason et al v. Lockwood, Andrews & Newnam, P.C. et al

This Flint water crisis class-action suit is ongoing in Genesee County Circuit Court, but for the brief time it was in federal district court, the engineering firm Lockwood, Andrews and Newnam and its corporate parents have sought to reverse that court’s decision that the case could proceed in Genesee County under the local controversy exemption of the Class Action Fairness Act.

They appealed that case to the Sixth Circuit, which upheld the lower court’s ruling. Now the corporations are appealing to the U.S. Supreme Court in the hopes of a reversal.

The late Supreme Court Justice Antonin SCALIA set a high bar for the certification of classes, with SCOTUS blog’s Lyle DENNISON calling him the court’s “most dedicated skeptic about the class-action approach to litigation.”

The blog notes that Gorsuch does not have a large number of rulings on class certification issues, but on the cases he has participated in, he’s leaned toward the defendants.

“In the cases involving class action issues in which he has participated, he has generally, but not always, ruled for the defense,” Amy HOWE wrote. “Notably, both in cases in which he has ruled for the defense and those in which he has ruled for the plaintiffs, Gorsuch has emphasized the need for courts to stay in their lane, so to speak — that is, not to exceed their authority, particularly when it comes to decisions that are in his view best left to Congress.”

An article on Law360 reached similar conclusions, saying his cases “suggest that Justice Gorsuch would adopt a measured, restrained approach to class action jurisprudence, firmly grounded in the text of Federal Rule of Civil Procedure 23, that necessarily favors neither plaintiffs nor defendants.”

Still, Gorsuch has not ruled on the local controversy exemption, which is being contested here, leaving the way he’ll lean quite murky.

Woods v Holbrook

The question in this case is whether a prisoner’s statute of limitations begins running again after they file in state court, or after the window for an available appeal ends. In Michigan, there is a 56-day time period after a Court of Appeals rejection in which individuals can appeal further.

The Sixth Circuit, reversing the district court ruling, decided unanimously that the one-year limits should begin counting down after the window for appeal expires, rather than the date of rejection. Schuette is now seeking a hearing with the Supreme Court.

Gorsuch has denied a number of habeas petitions requesting appeal during his time on the Tenth Circuit. In all of them he applied a strict textualist philosophy to the law, with Trujillo v. Tapia, being one example.

Gorsuch has also been spotlighted as working on Bush administration-era policies that withheld habeas petition for Guantanamo Bay detainees, but its relevance is minimal.

Woods v. Holbrook is set to be distributed for a conference on March 31, meaning Gorsuch may have no role in deciding whether it is heard. 

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