This past week, the U.S. Supreme Court issued an opinion in NRA vs. Vullo.  This case involves a claim that a New York state financial regulator threatened banks and insurance companies with investigation if they did not cease ties with the NRA.  The essence of the claim is that this threat was improper and was intended to coerce these companies to stop dealing with the NRA and was done in an attempt to suppress the NRA’s constitutionally-protected speech.  In a 9-0 decision by Justice Sotomayor (which could be her last majority opinion of the term) with two concurrences, the Supreme Court reinstated this claim.

There was a second case argued that day, Murthy v. Missouri, which involves more indirect claims of coercion.  The Supreme Court did not consolidate these two cases into one opinion, and (at least so far) it did not issue a per curiam opinion directing the lower to court to reconsider Murthy in light of Vullo.  As such, particularly in light of the concurrences in Vullo, it seems that, at least, some of the justices see factual distinctions between the two cases (as they should).  Until the Supreme Court issues the decision in Murthy, it will not be clear where the Supreme Court is drawing the line between persuasion/encouragement and coercion.  As such, I will not be commenting on the rule established by this case.  Instead, I am going to focus on the procedural aspects of this case.

The key procedural feature is this case is that it arises from a motion to dismiss.  A motion to dismiss is a common practice in civil cases.  (Motions to dismiss are less common in criminal cases because many states have standard form charges.)  A civil case begins with a plaintiff filing an initial pleading.  That pleading is required to set forth enough information to demonstrate that they have a legally-recognized claim for relief.  Some jurisdictions require more detailed facts than others, but the general rule is that the plaintiff must plead enough facts to demonstrate that the defendant(s) have harmed the plaintiff in a way that allows the plaintiff to seek redress from the court.  In theory, by signing this pleading, the attorney for the plaintiff is representing to the court that the attorney believes that they can prove the allegation (either currently have the evidence supporting the claim or have a reason to believe that they will be able to obtain that evidence through the jurisdiction’s discovery process).

A motion to dismiss comes after the defendants have been served with plaintiff’s initial pleading.  It comes prior to the defendant’s response (typically called an answer) to the specific allegations.  Because it comes before the defendant has either admitted or denied the specific allegations, a judge, at the motion to dismiss, stage is required to assume that the plaintiff will prove all of the allegations in that initial pleading.  The sole question is whether those allegations are enough.

This procedural posture is crucial to the decision in Vullo.  The NRA has made some serious allegations that Ms. Vullo has exceeded the scope of her proper authority by tying her decision about further investigations of insurance companies that had been underwriting some policies for the NRA to whether those companies did business with the NRA.  At this stage of the case, it is unclear what evidence the NRA has to prove that allegation.  At this point, what is clear, and admitted by the NRA, is that there had been a finding that, at least, one of the policies which the NRA had been offering to its members through these companies was improper and not allowed by New York law.  And, based on that one improper policy, New York was intending to look at other policies that these companies offered to NRA members to see if those policies were also improper.  There is also a suggestion that New York might broaden that investigation into policies being offered to other groups.  Ultimately, a deal was struck with these companies in which these companies agreed to pay a fine and stop offering some of the policies that it had been offering to NRA members.  There was also a letter issued by New York suggesting that financial services companies should reconsider their ties with gun groups in the interest of sound management, but that letter did not state any consequences for failing to cut such ties.

As this case progresses back at the trial level, there are going to be disputes about the accuracy of the NRA’s factual allegations.  Did Ms. Vullo ever offer a quid pro quo to the companies that the investigations would cease if they cut ties with the NRA?  Or did the companies do that on their own in hopes that maybe New York would be more lenient with them if they did so?  And was the final settlement between New York and the insurance companies reasonably within New York’s authority (i.e. were the products that the insurance companies agreed to stop offering possibly improper)?  And, given the restrictions on civil liability for state officials, was it clear that what Ms. Vullo actually did was improper and intended to coerce the insurance companies into cutting ties with the NRA in an effort to silence the NRA?  In deciding that this case could proceed, the Supreme Court has not decided the accuracy of any of the NRA’s allegations.  While the opinion details what the NRA alleges, that discussion assumes that the allegations are true because that is the legal assumption at the motion to dismiss stage, and those details are essential to whether the NRA has said enough to get to court.  The assumption at the motion to dismiss stage that the allegations are true does not mean that any court has found that the allegations are true.  The allegations are disturbing and, if true, would suggest that New York went too far, but that does not mean that anybody actually violated the rights of the NRA or any insurance company.

Looking briefly at the state of the term, this week saw three opinions which means that they are 30-32 cases left to be decided this term.   Other than Justice Sotomayor maybe being done with opinions, the other two decisions — an opinion in a February case from Justice Kavanaugh and an opinion in an April case from Justice Alito does not do much to shed light on the major cases of the term other than probably eliminating Justice Kavanaugh from having the two February cases involving state attempts to regulate social media companies.    With every justice due to get six or seven opinions from the term, the count current stands at:  Sotomayor — 6; Kagan — 4; Alito/Kavanaugh/Barrett/Jackson — 3;  Thomas/Gorsuch — 2; Roberts –1.  Given that the Chief Justice gets to assign the cases and is likely to keep some of the more significant cases for himself (and those cases are the most likely to have dissents which lengthens the drafting process), these numbers are not surprising.  But, as in past year, the fact that the liberal justices are in the lead in terms of opinions already issued is not a good sign for results in the cases which are most likely to end with a conservative-liberal split.  As of now, the Supreme Court has only announced one opinion day (Thursday) for this next week.  Given the numbers of opinions left, it would be shocking if the Supreme Court does not add a second day for the week of June 10.  If not, there will be five opinion days for the last nine days of the term.