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Justices agree to hear disputes over attorney-client privilege, union strikes

The high court will decide cases involving legal advice, unions, foreign banks and disability rights, among other issues.

(CN) — The Supreme Court kicked off its new term Monday by agreeing to hear nine new cases centered on issues ranging from attorney-client privilege to labor union disputes.

Aside from the notable decision to hear a pair of cases against tech companies over extremist content published on their platforms, the court also granted certiorari in seven other cases.

One of those cases involves attorney-client privilege and was brought by an unnamed law firm that was served with grand jury subpoenas seeking documents related to a criminal investigation of a client. These requested documents related to tax return preparation materials and communications regarding attorney advice on the tax consequences of the client's anticipated expatriation from the U.S.

While attorney-client privilege generally allows for legal advice to be confidentially provided and obtained between attorneys and their clients, the circuit courts are divided on how to properly determine when a communication made for multiple purposes – some legal and some illegal – is privileged.

In this case, known only as In Re Grand Jury, the Ninth Circuit applied the so-called primary purpose test to analyze which of these purposes is most significant, but the law firm argues this was the wrong approach and that the appeals court should have granted its petition for a rehearing due to the inconclusive precedent on the matter.

The firm also argues the primary purpose test imposes a heavy burden on district court judges by directing them to balance the competing legal and nonlegal motivations behind communications and will lead to incongruent rulings.

"Even when it is possible to disentangle the legal from non-legal motivations behind a communication, weighing those competing purposes to determine their relative significance is an artificial and unworkable exercise." attorney Evan Davis wrote in the firm's petition to the Supreme Court.

The law firm ask the justices to provide clear guidelines to resolve this conflict between the courts, which they argue not only hinders commutations between attorneys and their clients, but "creates intolerable uncertainty" in privilege determinations.

Another petition granted by the justices involves a labor union representing drivers for a concrete company, whose strike resulted in concrete being left to harden in the mixing drums of several loaded trucks that were never delivered.

After the concrete company, Glacier Northwest, filed a state tort claim for intentional property damages, a judge in Washington state held that the actions of the International Brotherhood of Teamsters Local Union were protected under the National Labor Relations Act.

But the Washington Court of Appeals disagreed and ruled that the act doesn't protect workers who fail to take reasonable precautions to prevent the destruction of an employer’s products before engaging in a work stoppage, noting that the union ordered the drivers to wait until the concrete was loaded into the trucks before stopping work.

That ruling was reversed by the Washington Supreme Court, which reinstated the trial court’s dismissal of the suit and granted protection to the union, whose destruction of concrete the court viewed as a “legitimate bargaining tactic.”

Glacier argues that because this decision conflicts with those from other high state and federal appeals courts, the Supreme Court must clarify whether the NLRA protects unions from liability in claims for intentional property destruction during labor disputes.

"If allowed to stand, it will not only put private property at the mercy of deliberate sabotage, but will also cast the NLRA into serious constitutional doubt by inviting the destruction of employers’ property rights while leaving them with no means of just compensation," wrote the company's attorney Noel Francisco in their petition.

Another case now in the Justices' hands also involves a union that represents dual-status technicians in Ohio’s Army and Air National Guards who filed unfair labor practice complaints with the Federal Labor Relations Authority.


But the Ohio National Guard claims that the Sixth Circuit erred in ruling federal oversight covers the state militia's labor practices because the Reform Act only applies to government corporations.

"Allowing the Federal Labor Relations Authority to regulate the labor practices of state militias under the Reform Act contravenes the principle that statutes must be interpreted, where possible, not to interfere with state sovereignty or to upset the balance of state and federal power," Ohio Attorney General Dave Yost wrote in his petition.

The Supreme Court will also determine whether federal district courts have jurisdiction to criminally prosecute foreign sovereigns, in a case from a commercial bank owned primarily by the government of Turkey that was indicted for helping launder billions of dollars worth of Iranian oil and gas proceeds in violation of U.S. sanctions against the Iranian government at the time.

The Second Circuit denied Halkbank's motion to dismiss the indictment, asserting that that sovereign immunity does not apply to foreign sovereigns, who stand like private persons in criminal cases.

Halkbank argues that this will be the first criminal trial of a foreign sovereign in U.S. courts.

"Federal prosecutors in Manhattan now have license to pursue friends and foes across the globe. That result violates bedrock norms of international law and two centuries of Supreme Court precedent. Only this Court’s immediate intervention can provide the consistency and clarity on which American allies depend," wrote the bank's attorney Lisa Schiavo Blatt in their petition.

The Supreme Court will also address sovereign immunity in a case arising from the First Circuit, which concluded that the Financial Oversight and Management Board for Puerto Rico does not have immunity from claims brought under the Puerto Rico Oversight, Management, and Economic Stability Act. or PROMESA.

Created in 2016 to address the U.S. territory's "fiscal emergency," the board claimed to be protected by sovereign immunity when a news organization sued for the disclosure of certain records.

Counsel representing the board argue that all the other circuits have held that jurisdiction-granting statutes do not invalidate sovereign immunity.

The high court also agreed to hear a case centered on Miguel Perez, a deaf 23-year-old who emigrated from Mexico to Michigan when he was 9 years old and enrolled in the Sturgis Public School District. The school assigned Perez with a classroom aide who had no training on how to work with deaf students and did not know sign language, leaving him unable to learn or communicate with his peers.

Although Perez still managed to progress academically and make the honor roll each semester, the school district told his family just months before graduation that Perez could only receive a "certificate of completion" and did not qualify for a high school diploma.

Perez filed a complaint with the Michigan Department of Education against the school district for discriminating against him by not providing him with necessary instructional resources. An administrative law judge dismissed his claims under the Americans with Disabilities Act for lack of jurisdiction, but the parties reached a settlement before a hearing on his Individuals with Disabilities Education Act claim. Sturgis schools agreed to pay for Perez to attend the Michigan School for the Deaf as well as any “post-secondary compensatory education,” sign language instruction and the family’s attorney’s fees.

Months later, Perez pursued his ADA claim to seek money damages in federal court, but the Sixth Circuit ultimately affirmed its dismissal, ruling that the parties' settlement decision bars him from bringing another similar case against the school, even if under a different federal law.

Now Perez argues to the Supreme Court that he is entitled to a futility exception because he already exhausted all remedies offered by the IDEA's administrative procedures, which cannot award compensatory damages for past emotional distress.

"As Miguel’s case illustrates, the Sixth Circuit’s rule will adversely impact the ability of students with disabilities to timely and effectively vindicate their federal rights," wrote Perez's attorney, Roman Martinez, in his petition to the Supreme Court.

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Categories / Appeals, Civil Rights, Employment, Government, Law

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