FINAL UPDATE 1:46 pm

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The Supreme Court on Monday released additional orders from its Friday Conference, but the list did not show any action on the ten cases dealing with the same-sex marriage issue. UPDATED: The Court later Monday morning posted on its electronic docket the rescheduling of the cases for consideration at the Justices’ Conference this Friday morning. An announcement could come later that day, after that session, or on the following Monday.

The Court did not grant any new cases, beyond the two that were announced last Friday. Justice Sonia Sotomayor filed a lengthy dissent from the Court’s denial of review in a Kentucky murder case, Hodge v. Kentucky (11-10974). In that case, Benny Lee Hodge faces a death sentence for murder. The Sotomayor dissent argued that the Kentucky Supreme Court had been wrong in rejecting a claim that the jury was not given enough of a chance to weigh as a factor against a death sentence the severe mental and physical abuse Hodge had suffered as a child. The state court, she wrote, appeared to have ruled that, if a crime was sufficiently horrible, it did not matter that there was “mitigating evidence.”

On the cases now pending on the issue of same-sex marriage, there are eight petitions on the constitutionality of the federal Defense of Marriage Act. Three are from the First Circuit Court (dockets 12-13, 12-15, and 12-97), two from the Second Circuit Court (12-63 and 12-307), one from a federal district court in California (12-16), and two from a federal district court in Connecticut (12-231 and 12-302). One petition tests the constitutionality of California’s “Proposition 8” (12-144), and one involves the validity of an Arizona law on benefits for married state employees; Arizona is a state that does not allow same-sex couples to marry (12-23).

The Court has now taken at least a tentative look at those cases at least once, without acting on any of them.

The Court, in other action on Monday, asked the U.S. Solicitor General for the federal government’s views on Law v. Siegel (docket 12-5196), a case dealing with the power of a bankruptcy trustee to impose a special charge on the debtor for failing to comply with the trustee’s demands for information during discovery. and for what the trustee in this case said was misconduct amounting to fraud during the bankruptcy case. The case is from the U.S. Court of Appeals for the Ninth Circuit, where a bankruptcy trustee in essence took away a $75,000 “homestead exemption” that a California homeowner, Steven Law of Chino, had claimed on a residence he had owned. The courts of appeals are split on whether a bankruptcy trustee has the authority, in imposing a “surcharge” against a debtor, to levy that charge against property that is otherwise exempt from the trustee’s reach.

Under bankruptcy law, a debtor is allowed to withdraw certain items of property from distribution to creditors, and that includes the right to keep out of court a dollar amount on one’s own home. The idea is that one’s residence should not be forfeited in the process of clearing up one’s debts in bankruptcy. Law claimed that amount on a home he had owned in Hacienda Heights, Calif. The trustee, however, imposed a $75,000 surcharge — offsetting that exemption — after concluding that Law had wrongly claimed that there was a second mortgage on his own, held by a lender in China. Law had made that claim when the trustee moved to sell that house to obtain funds at least to partly satisfy Law’s debts. Had such a second mortgage existed, that and the first mortgage would have exceeded anything that the trustee could have obtained by selling the house. Law was accused of seeking to frustrate that sale, and thus the bankruptcy case.

The trustee concluded that Law had invented the purported second mortgage, that it did not exist at all. The trustee also ruled that Law had committed a series of misrepresentations to the trustee, and had failed to respond adequately to demands for information to support his claims. When the Ninth Circuit agreed last year to uphold the “surcharge” against the homestead exemption, it relied upon one of its own precedents. One of the judges on the panel, however, said that the continuing force of that precedent was in doubt, and that the circuits were split on the issue. That split, apparently, is what prompted the Supreme Court to ask the Solicitor General for a federal government reaction. After the Solicitor General responds, the Court will then decide whether to hear Law’s appeal challenging the “surcharge.”

Besides issuing that order, the Court issued a series of denials in other new cases. It refused to rule on a claim that a jury, not a judge, must find the facts that support transferring the case of a juvenile accused of murder from juvenile to adult court, leading to greater punishment. The case is Villalon v. Indiana (11-1324).

Recommended Citation: Lyle Denniston, Again, no gay marriage orders (FINAL UPDATE), SCOTUSblog (Dec. 3, 2012, 9:32 AM), https://www.scotusblog.com/2012/12/again-no-gay-marriage-orders/