What's Happening at the Supreme Court After Thanksgiving

Supreme Court building

The U.S. Supreme Court is shown on April 25, 2022 in Washington, DC.

The Supreme Court justices will return from their Thanksgiving holiday to a full plate next week, when oral arguments are set for cases involving government corruption, illegal border crossing, and a Montana landowner who blames the federal government for, among other things, someone shooting his cat.

Government corruption and Andrew Cuomo’s former associates.

On Monday, the Court will hear two appeals from the Second Circuit raised by criminal defendants that were once part of former New York governor Andrew Cuomo’s inner circle.

Percoco v. United States raises the question of whether private citizens — as opposed to solely government officials — can be criminally convicted of bribery under federal law.

Joseph Percoco was a longtime aide and campaign manager of ousted New York governor Andrew Cuomo. In 2018, Percoco was convicted and sentenced to six years in prison for accepting over $300,000 in bribes from private companies that had been hoping to curry favor with Cuomo’s office. Percoco was released from prison four years early. He was convicted of honest services fraud, conspiracy to commit honest services fraud, and solicitation of bribes and gratuities.

In his appeal to SCOTUS, Percoco challenges one honest services wire fraud conviction for accepting $35,000 from real estate developer Steven Aiello to assist with circumventing the local union. Percoco’s certiorari brief to SCOTUS neatly sums up the question before the justices:

When a public official accepts money to convince the government to do something, we call him a crook. But when a private citizen accepts money to convince the government to do something, we call him a lobbyist.

In the related case, Ciminelli v. United States, the justices will consider the appeal of Andrew Ciminelli, the owner of a construction company who was one of Steven Aiello’s codefendants.

Ciminelli was involved in Cuomo’s 2012 “Buffalo Billion” plan to invest one billion dollars in development projects in upstate New York. Ciminelli and others were convicted in 2017 for their roles in a bid-rigging scheme to get preferential treatment as part of Cuomo’s plan.

Ciminelli was sentenced to 28 months in prison, but now appeals to SCOTUS to challenge the interpretation of the federal wire fraud statute under which he was convicted. Ciminelli lost his first appeal and asks the justices to rule that the 2nd Circuit was wrong to analyze the case under what is known as the “right to control” theory of fraud.

Under the “right to control” theory, withholding information in an effort to influence a person’s economic decision is considered a kind of property fraud. Ciminelli’s lawyers point to SCOTUS’ ruling in the Bridgegate scandal, in which the justices said that intentionally creating gridlock on the George Washington Bridge as political payback did not constitute a crime under the federal wire fraud statute.

Texas and Louisiana block Biden’s immigration plan.

On Tuesday, the high court will turn its attention to a national case in which Texas and Louisiana challenge President Joe Biden’s immigration policy.

United States v. Texas  A challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention.

The Supreme Court will once again examine the scope of executive branch authority to make immigration policy. The Biden administration instituted a policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation.  In September 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memorandum that detailed the administration’s priorities for immigration enforcement. Mayorkas said that because the Department of Homeland Security cannot deport all 11 million individuals subject to deportation, that it would prioritize suspected terrorists, people who have committed serious crimes, and those caught at the border.

Texas and Louisiana sued to block the policy. A district judge sided with the states, and the Biden administration now awaits a ruling from SCOTUS to determine whether it will be permitted to implement its plan.

Montana Landowners sue the feds for using their land.

On Wednesday, the justices will hear arguments in Wilkins v. United States as they consider a dispute befitting an episode of Yellowstone: whether Montana landowners have the right to sue the federal government for land-locking them with an improper easement.

Larry Steven “Wil” Wilkins (a veteran who lives with post-traumatic stress disorder) and his neighbor Jane Stanton (a widow who lives across the Robbins Gulch Road from Wilkins) granted an easement to the U.S. Forest Service in 1962 such that the federal government could maintain a road across their land. All was well until 2006 when the Forest Service put up a sign that read “public access thru private lands.”

Since the posting of the sign, Wilkins and Stanton say they “have had to deal with trespassers on their private property, theft of their personal property, people shooting at their houses, people hunting both on and off the easement, and people travelling [sic] at dangerous speeds.” Once, in 2019, a traveler on the road even shot Wilkins’ cat.

Now that the easement is used more frequently, the land has eroded, which has caused sediment to build up on neighboring properties which in turn “has caused washout on those properties.” All the while, say the claimants, the Forest Service has done less and less to maintain its easement. The landowners say they asked the Forest Service for help multiple times, always to be refused.

Wilkins and Stanton eventually sued. However, the presiding court said their lawsuit had been filed after the 12-year statute of limitations had run and was therefore too late.

The federal Quiet Title Act allows litigants 12 years within which to file their claims, but the legal question before the justices zeroes in on the nature of that 12-year rule. If the statute of limitations in the Quiet Title Act is considered “jurisdictional,” then it goes to the power of the court to hear the case and the landowners will lose. If, on the other hand, the rule is simply considered a procedural “claims-processing rule,” Wilkins and Stanton may still prevail.

The landowners lost their appeal at the U.S. Court of Appeals for the Ninth Circuit, but are hopeful that SCOTUS will interpret the statute as other circuits have — and allow their case against the federal government to proceed.

[Image via Kevin Dietsch/Getty Images]

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