The First Amendment and the commerce clause



This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Puerto Rican news agencies have a First Amendment right to audio of proceedings in a case of domestic violence that sparked protests and whether a New Jersey levy violates the commerce clause.

Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico follows the murder of Andrea Cristina Ruiz Costas by her ex-boyfriend, which led to protests in San Juan, Puerto Rico. Shortly before her death, Ruiz Costas had sought a restraining order and criminal charges against the ex-boyfriend, but the court did not grant her any relief after three separate hearings. After news organizations sought the audio recordings of those proceedings, Puerto Rican courts denied any access on the ground that, because judges have discretion over access to courtrooms hearing domestic violence matters to protect confidentiality, the recordings of the proceedings should remain sealed. In its petition, the Asociación de Periodistas de Puerto Rico argues that the courts erred in not considering the First Amendment before denying access to the proceedings and that their interpretation violates the First Amendment.

New Jersey imposes a levy on any partnership that derives income from New Jersey, at the flat rate of $150 per partner up to $250,000, regardless of whether the partner is in New Jersey. Ferrellgas Partners, LP is a “master limited partnership,” which has allowed Ferrellgas to raise capital by selling partnership “units” that are similar to stock and are traded on the New York Stock Exchange. In its petition, Ferrellgas maintains that from 2009 to 2011, about one percent of its sales were in New Jersey, yet, because it has tens of thousands of partners, New Jersey assessed levies of $250,000 each year, even eclipsing Ferrellgas’s New Jersey income. Ferrellgas argues that the levy violates the commerce clause because it exceeds the proportion of commerce that takes place in New Jersey. New Jersey courts upheld the levy, however, under an exception on the basis that the levy is a regulatory fee that is “locally focused.” The case is Ferrellgas Partners, LP v. Director, Division of Taxation of New Jersey.

These and other petitions of the week are below:

Devine v. Absolute Activist Value Master Fund Limited
Issue: Whether the voluntary dismissal of a plaintiff’s suit under Federal Rule of Civil Procedure 41(a)(1) permanently strips the district court of jurisdiction to consider a motion to modify a previously issued protective order.

Lee v. Garlick
Issues: (1) Whether, in granting habeas corpus relief to a state court prisoner, the U.S. Court of Appeals for the 2nd Circuit created a circuit split and denied the state court judgment the deference mandated by 28 U.S.C. § 2254(d)(1) when it relied on a test that was not clearly established by the Supreme Court’s precedents to determine that an autopsy report was testimonial under the confrontation clause; (2) whether the 2nd Circuit violated Yarborough v. Alvarado by applying an overly specific “unreasonable application” analysis; and (3) whether the 2nd Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the admission of the autopsy report was not harmless despite (a) uncertainty as to whether the report was admissible to form the basis of an in-court expert opinion, and (b) overwhelming evidence of guilt including surveillance video of James Garlick stabbing the victim to death.

Ferrellgas Partners, LP v. Director, Division of Taxation of New Jersey
Issue: Whether a levy that raises revenue for a state’s general fund, and that is not restricted to the in-state activities of the levy-payor, may be characterized as a locally focused regulatory fee, and thus be imposed without regard to whether it is internally consistent.

Duncan v. Liberty Mutual Insurance Company
Issue: Whether a person suffers Article III injury-in-fact when an insurer breaches its contractual obligation to pay for the person’s medical care.

Butler v. Porter
Issue: Whether remedies under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics are categorically unavailable to federal prisoners in any context other than for violations of a federal prisoner’s Eighth Amendment right to adequate medical care.

Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
Issues: (1) Whether courts may summarily close judicial proceedings and deny access to the official recordings of those proceedings without determining whether the First Amendment public access right attaches to them; and (2) whether Article 5.005 of Puerto Rico’s Judiciary Act of 2003, as construed by the Puerto Rico Supreme Court to require automatic closure of all domestic violence proceedings and the official recordings of those proceedings, violates the First Amendment public access right under Globe Newspaper Co. v. Superior Court.

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