Conference Report: January 5, 2018 Conference

On Monday, the Supreme Court gave a death row inmate another chance to persuade the federal courts to consider whether his sentencing proceeding was infected with racial bias. The opinion in this case,  Tharpe v. Sellers, was issued as part of the Order List from the Court’s January 5, 2018 Conference. The Court did not otherwise add any new cases to its docket, although it did call for the views of the Solicitor General in three cases.

In Tharpe v. Sellers, a habeas corpus case, the Court remanded the case for further consideration of whether the petitioner is entitled to a certificate of appealability (COA). (Unlike most litigants, habeas petitioners who are challenging state court convictions or sentences can appeal only if they can make “a substantial showing of the denial of a constitutional right.”) As the ABA Journal reports, Keith Leroy Tharpe was convicted of the 1990 murder of Jaquelin Freeman during the commission of the kidnapping and rape of his estranged wife. He was sentenced to death in early 1991. According to the Washington Post, Tharpe was set to be executed in late September, but the Supreme Court issued a temporary stay based on a claim of racial bias by the jury. Monday’s opinion went further, citing a signed affidavit from seven years after Tharpe’s conviction in which a white juror made such statements as “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; and “[a]fter studying the Bible, I have wondered if black people even have souls.” The Court held that since the juror had never retracted the affidavit, there was a strong factual basis for the argument that Tharpe’s race affected the juror’s vote for the death penalty.

Justice Thomas dissented, joined by Justices Alito and Gorsuch. In the dissent, Justice Thomas questioned why the Court would engage in “this pointless exercise” stating that the remand will not stop Tharpe’s ultimate execution and instead only delays justice for Jaquelin Freeman. Justice Thomas noted  that the jury took only two hours to return a unanimous death sentence and pointed out that the juror in question signed a second affidavit in which he stated that he voted for the death penalty not because Tharpe was black, but because the evidence at trial justified the punishment and Tharpe showed no remorse. In addition, the second affidavit explained that the juror had been drinking when he signed the first affidavit and claimed that his statements had been taken out of context.

The majority and the dissent agree that it is unclear whether Tharpe will be able to clear the bar to receive a COA, despite the juror’s affidavit. But the majority still held that, based on the “unusual facts” of the case, the Eleventh Circuit should reconsider Tharpe’s request for a COA. CNN discusses the case here.

When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court is requesting that the Solicitor General file an amicus brief to explain the United States’ view on whether the case deserves review. This most often happens in cases where, although the United States is not directly involved as a party, federal interests are significantly affected or the federal government possesses particular expertise. More information about CVSGs is available here.

In Dawson v. Steager, the question presented is whether the doctrine of intergovernmental tax immunity based on the precedent set in Davis v. Michigan Department of Treasury (1989) bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees based on the source of their retirement income. The precedent set in Davis was that a state can tax federal employees’ income only “if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation” – meaning that unless there is a significant difference between the state’s employees and federal employees, there can be no differentiation in tax exemption status.

In this case, James Dawson was a U.S. Marshal when he retired from the U.S. Marshal Service in 2008.  Under West Virginia law, Mr. Dawson should be able to exempt a portion of his retirement benefits from his state taxable income.  State law enforcement retirement recipients, however, are allowed to exempt all of the received benefits from their retirement plans from their taxable state income. The Dawsons have requested that the Supreme Court hear their case, and argue that West Virginia’s tax law discriminates against federal employees by favoring similarly situated state employees. The respondent in this case, State Tax Commissioner of West Virginia, Dale W. Steager, has argued that a Supreme Court review is unnecessary because the group of exempted state employees is so narrow that the state’s tax law does not discriminate against federal employees or provide state employees with a blanket exemption.

The question presented in Herrera v. Wyoming is whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest violated the Crow Tribe of Indians’ rights to hunt on the “unoccupied lands of the United States,” as established by federal treaty in 1868, thereby permitting the 2017 criminal conviction of a Crow member who engaged in subsistence hunting for his family.

In 1868, the Crow Tribe of Indians ceded to the United States most of their land (much of which was located in the present-day states of Wyoming and Montana) through the 1868 Treaty With The Crows. In exchange for the land, the 1868 Treaty created the Crow Indian Reservation along what is now Montana’s southern border and provided for payments, goods, and federal protection of the Crow Tribe members and remaining lands. Additionally, the 1868 Treaty provided that the Crow Tribe would have the right to “hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists [. . .] on the borders of the hunting districts.” In 1890, Wyoming became a state.  In 1891, Congress enacted the “Forest Reserve Act” which created the framework for the establishment of the National Forests. This Act provided that “nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes.”  In 1897, the Bighorn National Forest was created adjacent to the Crow Reservation on the Wyoming side of Montana’s southern border.

In 2014, Petitioner Clayvin Herrera and other members of the Crow Tribe were hunting on the Crow Reservation. While following a small herd of elk, the group crossed into the Bighorn National Forest. The group shot three elk and returned to the reservation with their kill. Mr. Herrera was subsequently tried and convicted of two crimes under Wyoming law for the unlawful hunting of elk in the National Forest. Mr. Herrera was prohibited from asserting the treaty right as a bar to prosecution, a decision which was affirmed by a Wyoming appellate court. These decisions were based on a 10th Circuit case from 1995, Crow Tribe of Indians v. Repsis, in which the court held that the “Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” 73 F.3d 982, 992 (10th Cir. 1995). The court continued by saying that the Creation of the Bighorn National Forest in 1897 “resulted in the ‘occupation’ of the land” and therefore also invalidated the Crow Tribe’s off-reservation hunting rights from the 1868 Treaty.

Mr. Herrera argues that Repsis was incorrectly decided by the Tenth Circuit, and that his rights – and the rights of other Native Americans who are bound by similar language in treaties with their tribes – were not abrogated either by the admission of Wyoming into the Union or by the creation of Bighorn National Forest. Wyoming, the respondent, asserts that the real issue is whether the doctrine of collateral estoppel, on which the lower courts relied, precludes Mr. Herrera from relitigating the Crow Tribe’s hunting rights within Wyoming. Wyoming also argues that the 1868 Treaty expired by its own accord and is in no way being abrogated by the State of Wyoming. Finally, Wyoming contends that the language in the 1868 Treaty is not widely replicated in other treaties with Native American tribes, so any decision will have limited precedential value.

The question presented in Fourth Estate Public Benefit Corp. v. is whether a copyright claim has been registered, within the meaning of 17 U.S.C. §411(a), when the copyright holder delivers the required application, deposit and fee to the Copyright Office, as the Fifth and Ninth Circuits have held; or if registration is made only once the Copyright Office acts on that application, as the Tenth and Eleventh Circuits have held.

Fourth Estate, an independent news organization, owns the copyrights to its journalists’ works and licenses them to AHN Feed Syndicate, a cloud-based news organization. AHN then takes the journalism from Fourth Estate and other content producers and licenses it to others. was a former licensee of AHN Feed Syndicate’s. Under the terms of the license, if Wall-Street canceled its account with AHN, it was to permanently remove and stop display of all AHN-provided content. However, after canceling it’s account with AHN, Wall-Street continued to distribute and copy 244 of Fourth Estate’s Works. Fourth Estate, which lost in the lower courts, argues that the Supreme Court should grant review to resolve the circuit split regarding when a copyright registration has been made; and further argues that this is a recurring question in most copyright infringement cases. Wall-Street contends that review is unwarranted both because Fourth Estate overstates the importance of the question presented, and because the 11th Circuit’s interpretation of 17 U.S.C §411(a) is correct – an infringement claim can only be made “once registration ‘has been made’ or ‘refused.’”

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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