United States Supreme Court (Fall 2006) News & Views

SCOTUS News & Views Fall 2006

December 11, 2006

Commute This Sentence

A clemency case not even President Bush can ignore -- or can he?

Washington Post Editorial

THE SUPREME Court this week declined to review the case of Weldon Angelos, leaving in place his obscene sentence of 55 years in prison for small-time marijuana and gun charges. The high court's move is no surprise; the justices have tended to uphold draconian sentences against constitutional challenge. But it confronts President Bush with a question he will have to address: Is there any sentence so unfair that he would exert himself to correct it? . . . So far, Mr. Bush hasn't found one. He has commuted only two sentences, both of inmates who were about to be released anyway. Mr. Angelos, by contrast, is a young man and a first-time offender who is now likely to spend the rest of his life in prison. His crime? He sold $350 in marijuana to a government informant three times -- and carried, but did not display, a gun on two of those occasions. Police found other guns and pot at his house. The U.S. district judge who sentenced him in Utah, Paul G. Cassell, declared the mandatory sentence in this case "unjust, cruel, and even irrational." He noted that it is "far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape." And in an extraordinary act, he explicitly called on Mr. Bush to use his clemency powers to offer what he as a judge could not: justice. Judge Cassell recommended that Mr. Bush commute the sentence to 18 years, which he described as "the average sentence recommended by the jury that heard this case."

Supreme Court says buttons did not bias jury against killer

Pete Yost, Associated Press

The Supreme Court, in a first-of-its-kind ruling, concluded unanimously Monday that murder trial spectators were free to wear buttons with a picture of the victim in front of the California jury that convicted the defendant. . . . The justices ruled in favor of California prosecutors who said the buttons were a harmless expression of grief by family members at the trial of Mathew Musladin. . . . It was the first time the justices ruled on whether the conduct of courtroom spectators deprived a defendant of a fair trial, which in this instance resulted in a conviction that was reversed by an appeals court. . . . Musladin had successfully challenged his conviction in the 1994 shooting death of Tom Studer, the fiance of Musladin's estranged wife, in San Jose, Calif. Musladin is serving a sentence of 32 years to life in prison. . . . Justice Clarence Thomas, writing for five of his colleagues, said the buttons "did not deny (Musladin) his right to a fair trial," although he said the question remains open whether spectators' conduct could be prejudicial. The other three justices also concurred with the court's judgment, but did not join Thomas' opinion. . . . Three members of Studer's family wore a button with a photo of the victim throughout the trial over the objections of Musladin's lawyer. The request prior to trial to preclude the family members from wearing the buttons was rejected by the judge, who said he saw "no possible prejudice to the defendant."

December 8, 2006

Supreme Court and the Death Penalty

The U.S. Supreme Court will be hearing four death penalty cases in January 2007:
SCHRIRO V. LANDRIGAN, No. 05-1575
This Arizona case will be argued on January 9.  The Court will decide whether defense counsel has a duty to develop and offer evidence favorable to the client in a death penalty case when the client actively opposes presentation of such mitigating evidence.  On a habeas corpus petition, the U.S. Court of Appeals for the 9th Circuit (en banc) held that Landrigan had received ineffective representation and was entitled to a new sentencing hearing.

ABDUL-KABIR V. QUARTERMAN, No. 05-11284, and BREWER V. QUARTERMAN, No. 05-11287 . . . These two cases have been consolidated and will be argued on January 17.  The basic question in both cases is whether Texas' former jury instructions allowed the jury to consider the full range of mitigating evidence that a defendant might offer, especially regarding mental impairments.  The U.S. Court of Appeals for the Fifth Circuit denied relief to both defendants.

SMITH V. TEXAS, No. 05-11304 . . . This case will be argued on the same day as the consolidated cases above, January 17.  The issue again involves Texas' former jury instructions.  The underlying issue in this case had been decided earlier by the U.S. Supreme Court in favor of the defendant, LaRoyce Smith, in 2004 and remanded back to the Texas Court of Criminal Appeals for consideration of a new sentence.  The Texas court denied Smith a resentencing because it said he had not shown "egregious harm" to his fair trial rights.  The Supreme Court will decide whether the Texas court applied the proper standard of review.

The Supreme Court has already decided one capital case this term:
AYERS V. BELMONTES, No. 05-493, Argued Oct. 3, 2006; Decided Nov. 13, 2006
The Court upheld California's death penalty law in a 5-4 decision. The majority held that the state's law allowed the jury to consider all appropriate mitigating evidence, thereby overturning a ruling to the contrary by the 9th Circuit.

The Court's decision in LAWRENCE V. FLORIDA, No. 05-8820, argued Oct. 31, 2006, is pending.

For more information on all of these cases, see Supreme Court.

December 7, 2006

State of the Unions
Should you pay for someone else's opinions? A teachers union think so.
By Stephen Moore

Teachers unions are supposed to promote the financial interests of, well, teachers--but not in Washington state. Here, the Washington Education Association is fighting some 4,000 nonmember teachers who don't want their paychecks raided each year and used for political activities that they don't believe in. "The right of free speech is being trampled" by the union political spending, complains Scott Carlson, a business teacher in Spokane. "And that's a right I hold very precious." . . . Too bad the unions don't. The WEA derisively refers to teachers like Mr. Carlson who want their money back not as free-speech advocates but "dissidents." The goal is to squash these dissidents by overturning Initiative 134, a law--approved by 72% of Washington voters in 1992--that requires unions to obtain written approval from teachers before dues are spent on campaigns or candidates. Back in March, the unions got a surprising assist from the state Supreme Court, which ruled that the paycheck protection law places "too heavy" a burden on the free-speech rights of the union. . . . The case has now been bumped up to the U.S. Supreme Court, which will hear oral arguments in January--in what could be the most important First Amendment decision in years.

December 6, 2006

Supreme Court Rules in Favor of Immigrant on Deportation Issue

Pete Yost, The Associated Press 

The Supreme Court on Tuesday made it easier for some immigrants convicted of drug possession under state law to remain in the United States rather than being subject to deportation. . . . In an 8-1 decision, the justices ruled in favor of an immigrant who pleaded guilty to aiding and abetting possession of drugs in South Dakota for telling someone where to obtain cocaine. . . . While such a crime is a felony in South Dakota, most first-time simple possession offenses are punished as misdemeanors under the federal Controlled Substances Act. . . .The issue before the Supreme Court was the interpretation of the federal Immigration and Nationality Act, which says immigrants found guilty of aggravated felonies are subject to deportation. . . . Conduct that is a felony under state law but a misdemeanor under the Controlled Substances Act is not a felony for purposes of immigration, stated the ruling by Justice David Souter. . . . Jose Antonio Lopez, a 16-year permanent U.S. resident, was deported to Mexico in January 2006, but could return to his wife and two children, who are U.S. citizens, one of his lawyers has said.

December 5, 2006

Supreme Court Could Rule Against Use of Race for Public School Diversity

Tony Mauro, Legal Times 

The Supreme Court appeared headed on Monday toward a ruling that will sharply limit, if not eliminate, the use of race as a factor in assigning students to public schools to achieve diversity. . . . During two hours of oral argument, Justice Anthony Kennedy, whose vote may determine the outcome of the case, seemed deeply skeptical of the constitutionality of using race as a factor, especially in a school district that has already been declared "unitary" and ended efforts to desegregate. . . . "If we, for the first time, say that a system that has achieved unitary status ... can turn around and use individual skin color. ... We've never said that," Kennedy exclaimed at one point. "That takes us on a very perilous course." . . . A ruling against the use of race could have a broad impact in school districts nationwide that use a variety of race-conscious methods to cure racial imbalances caused by housing patterns. Civil rights leaders who were among the spectators packing the courtroom Monday were pessimistic afterward.

December 4, 2006

Supreme Court Takes 'Bong Hits 4 Jesus' Free Speech Case

Mark Sherman, The Associated Press

The Supreme Court stepped into a dispute over free speech Friday involving a suspended high school student and his banner that proclaimed "Bong Hits 4 Jesus." . . . The justices agreed to hear the appeal by the Juneau, Alaska, school board and principal Deborah Morse of a lower court ruling that allowed the student's civil rights lawsuit to proceed. The school board hired former Whitewater prosecutor Kenneth Starr to argue its case to the high court. . . . Morse suspended Joseph Frederick after he displayed the banner, with its reference to marijuana use, when the Olympic torch passed through Juneau in 2002 on its way to the Winter Games in Salt Lake City. . . . Frederick, then a senior, was off school property when he hoisted the banner but was suspended for violating the school's policy of promoting illegal substances at a school-sanctioned event. . . . The Alaska case was one of three appeals the Court accepted Friday.

Cases retread Brown vs. Board of Education steps

The Supreme Court takes up two school integration disputes that could have far-reaching effects.

By David G. Savage, Times Staff Writer

For the first time in a decade, the Supreme Court will revisit the legacy of a landmark: the Brown vs. Board of Education decision of 1954 that declared unconstitutional the racial segregation of public schools. . . . Separate schools for black and white children are "inherently unequal," Chief Justice Earl Warren said in an opinion that helped launch the civil rights movement. . . . State-enforced segregation laws are long gone, but for school officials today, a key question remains: Did the historic decision commit them to a policy of seeking integrated schools, or did it tell them not to assign students to a school based on their race? . . . Today, lawyers in a pair of integration cases will debate whether school boards may use racial guidelines to assign students. And both sides will rely on the Brown decision to make their case.

December 1, 2006

High Court Vets False Claims Act

Marcia Coyle, The National Law Journal

A 17-year-old whistleblower suit by a now 81-year-old former engineer at the Rocky Flats nuclear weapons plant has triggered U.S. Supreme Court review of a crucial issue under the fastest growing area of federal civil litigation today, the False Claims Act. . . . In Rockwell International Corp. v. U.S. and ex rel. Stone, No. 05-1272, the justices on Dec. 5 will examine a critical restriction on who can bring so-called qui tam lawsuits under the act. . . . Was Principal Engineer James S. Stone "an original source of the information" that served as the basis for a jury's finding that Rockwell, starting in 1987, violated the act by hiding from the government environmental, safety and health problems related to its processing of nuclear waste? . . . The high court's interpretation of a statute that Justice Samuel A. Alito Jr. as a lower court judge criticized as unclear will affect not only who qualifies as a qui tam "relator" but also the ability of defendants, often large corporations, to dismiss early these complex and expensive suits. . . . The False Claims Act is becoming the principal tool by which the federal government combats fraud, said FCA practitioner Peter B. Hutt II, a partner at Miller & Chevalier, who filed an amicus brief supporting Rockwell on behalf of the Washington Legal Foundation.

Supreme Court Advocacy Project On School Desegregation

Cynthia Cook Robertson, The Harvard Law Record.

On November 16, approximately 250 HLS students gathered in Ames Courtroom to witness a preview of what may prove to be a landmark Supreme Court case. . . . On December 4, the Supreme Court will hear oral arguments in two cases challenging voluntary school desegregation policies implemented by local school boards in Louisville and Seattle. The policies examined in these cases - similar to those implemented in school districts across the country - are designed to mitigate the problem of de facto racial segregation in private schools caused by residential patterns. The Supreme Court has never addressed the question of whether public schools may use race as a criterion to assign students to schools for the purposes of desegregation. . . . Mr. Frank Mellen, HLS '73, the counsel of record for the respondent in the Louisville case, Meredith v. Jefferson County Board of Education, returned to his alma mater to rehearse his oral argument and to receive constructive criticism from professors and students. . . . Mr. Mellen, a partner at Wyatt, Tarrant and Combs LLP, will be arguing for the first time before the Supreme Court. He has advised the Jefferson County Board of Education for nearly thirty years on a broad range of legal matters. He has long familiarity with the board's desegregation efforts, having advised the board on its 1991 revisions to the plan. In 2000, he advised the board after the 2000 ruling in Hampton v. Jefferson County Board of Education, which abolished the school district's system of racial quotas for magnet schools. . . . The current case emerged from the school board's decision in 2002 to deny a requested transfer to Joshua McDonald, a kindergartner whose mother, Crystal Meredith, wanted her son to attend school closer to home.

November 30, 2006

Eyes on Kennedy as Supreme Court Debates Global Warming Case

Tony Mauro, Legal Times

Supreme Court Justice Anthony Kennedy appears to hold the key to the outcome of the Court's first case assessing the environmental impact of global warming. . . . During oral arguments Wednesday in the closely watched case Massachusetts v. Environmental Protection Agency, justices seemed deeply divided on two questions: whether the EPA can be compelled to regulate greenhouse gas emissions from cars when the agency has chosen not to, and whether Massachusetts and 11 other states even have standing to challenge the EPA's actions. . . . Kennedy was relatively quiet during the hour, but several other justices seemed to tip their hands on the claim by the states that they have standing to compel the agency to regulate such emissions. The EPA decided in 2003 that it did not have the authority under the Clean Air Act to regulate carbon dioxide emissions -- and that because of scientific uncertainty about the effect of global warming, it would not regulate even if it had the power to do so. . . . The dispute comes to the Court as a growing number of states are becoming impatient with the federal government on the issue.

November 29, 2006

Justices Slam Nation's Patent System; Federal Circuit Chief Defends 'Obviousness' Test

Tony Mauro, Legal Times 

In surprisingly blunt terms, Supreme Court justices Tuesday made it crystal clear that they are upset with the nation's patent system, the lawyers who litigate under it and the appeals court that referees it. . . . During a lively -- bordering on raucous -- hour of arguments on what makes an invention so obvious that it does not deserve a patent, justice after justice piled on criticism of the U.S. Court of Appeals for the Federal Circuit's three-part "teaching-suggestion-motivation" test for determining obviousness, an issue that arises in virtually every patent application and appeal. The test has been criticized as too patent-friendly, resulting in a proliferation of junk patents that stifle competition. . . . "Three imponderable nouns," is how Justice Antonin Scalia dismissed the test, also calling it "gobbledygook" for good measure.. . . Chief Justice John Roberts Jr. called it "Federal Circuit jargon" that is inflexible and "worse than meaningless." . . . And when Justice Stephen Breyer said he had read the briefs in the case "15 times" and still could not understand the "motivation" prong of the test, Scalia chimed in, "Like Justice Breyer, I don't understand." . . . The implied message to the Federal Circuit seemed to be: If two of the brainier justices on the Supreme Court don't have a clue what you are talking about, a new test might be in order.

November 28, 2006

Supreme Court Turns Down 'The New York Times' in Leak Investigation

Pete Yost, The Associated Press

The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing telephone records of two Times reporters in a leak investigation concerning a terrorism-funding probe. . . . The one-sentence order came in a First Amendment battle that involves stories written in 2001 by Times reporters Judith Miller and Philip Shenon. The stories revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation. . . . U.S. Attorney Patrick Fitzgerald is trying to track down the reporters' confidential sources for the stories. Fitzgerald's spokesman, Randall Samborn, declined to comment on the Supreme Court's order.

November 27, 2006

Court orders new review of ERISA case

Posted by Lyle Denniston

The Supreme Court on Monday ordered the Ninth Circuit Court to reconsider a ruling on federal courts' authority to review denials of benefits to a worker by the administrator of an employee plan. In a summary order, the Court sent the case of Metropolitan Life Insurance v. Hawkins-Dean (05-1424) back to the Circuit Court for review in the wake of an en banc decision by that court in another case. The question of judicial second-guessing of plan administrator's benefit denials had produced a split in the Circuit Court. . . . The Ninth Circuit in the Metro Life case ruled against the administrator, based on a conflict of interest. That decision had been based upon an earlier NInth Circuit precedent, which has now been overruled en banc in Abatie v. Alta Health & Life Insurance -- the new ruling that the Supreme Court noted in ordering reconsideration of Metro Life. . . . Today's orders can now be found here.

Supreme Court to Mull Pay-Discrimination

By Mark Sherman, Associated Press Writer

(AP) -- A former tire plant employee is asking the Supreme Court to uphold a jury verdict in her pay discrimination lawsuit in a case that employers and civil rights groups are watching closely. . . . Justices were to consider Monday how to apply a 180-day deadline for complaining about discriminatory pay decisions under Title VII of the federal Civil Rights Act of 1964. . . . After 19 years at a Goodyear Tire & Rubber Co. plant in Gadsden, Ala., Lilly Ledbetter was making $6,000 a year less than the lowest-paid man in the same job. . . . She filed a pay discrimination lawsuit in 1999, arguing the disparity existed for years and was primarily a result of her gender. A federal jury agreed and awarded Ledbetter more than $3.8 million. A judge reduced the award to $360,000.

November 20, 2006

Supreme Court Asks Utah To Respond Polygamy Appeal

The U.S. Supreme Court has asked Utah's Attorney General to respond to a polygamist police officer's appeal of his bigamy conviction. . . . An attorney for Rodney Holm, a member of the polygamy-practicing southern Utah-based Fundamentalist Church Attorney General Mark Shurtleff had previously said his office would only respond to the filing at the court's request. A letter from court officials was received Friday. . . . "This means they have some interest in hearing the case," said Paul Murphy, Shurtleff's spokesman. "How much we don't know. Obviously, we are going to follow the court's direction." . . . In its letter, the high court asked that 40 printed copies of the attorney general's response be submitted by Dec. 13. Murphy said the office will ask for additional time to comply.

November 13, 2006

Supreme Court Refuses to Hear Qwest Case Involving Privilege Protections

The Associated Press 

The Supreme Court on Monday refused to consider a case in which Qwest Communications International Inc. had been ordered to produce 220,000 pages of documents to shareholders in a civil securities fraud lawsuit. . . . Qwest attorneys had argued the documents were protected by attorney-client and work-product privilege. . . . Many shareholders involved in the lawsuit reached a $450 million class action settlement with Qwest, but claims are pending against former Chief Executive Officer Joseph Nacchio and former Chief Financial Officer Robert Woodruff. . . . The 10th U.S. Circuit Court of Appeals upheld a lower court's decision that the company waived its privilege when it gave the documents to the Securities and Exchange Commission and Justice Department.

High Court Moves to Reinstate Calif. Man's Death Sentence

Mark Sherman, The Associated Press

The U.S. Supreme Court on Monday moved to reinstate the death penalty for a California man convicted of murdering a 19-year-old woman during a burglary. . . . Justices reversed an appeals court ruling that threw out Fernando Belmontes' death sentence because the trial judge misled jurors who were considering whether to give Belmontes the death penalty or life in prison. . . . The 5-4 decision was the Court's first since starting its new term in October. It reflected an increasingly common division in death penalty cases between the Court's conservative and liberal blocs. . . . Justice Anthony Kennedy said it was implausible to conclude that jurors failed to take all the evidence into account before settling on a sentence of death. . . . Belmontes beat Steacy McConnell to death with a dumbbell bar in the burglary of her home in 1981. He was convicted of the crime and sentenced to death, a decision upheld by state courts and a federal judge. . . . The 9th U.S. Circuit Court of Appeals, however, twice commuted the sentence. The second time was after the Supreme Court told it to reconsider Belmontes' sentence under a decision that restored the death penalty in another California murder case.

November 6, 2006

In a Brief, Unsigned New Opinion, The Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud
By Michael C. Dorf

The Supreme Court's first formal opinion of the current Term received little notice, but could signal a seismic--and ill-advised--shift in the constitutional law governing elections. In a brief unsigned opinion in Purcell v. Gonzalez, the Justices unanimously reversed the U.S. Court of Appeals for the Ninth Circuit, which had ordered Arizona state officials not to enforce new state-mandated identification requirements for voter registration and voting. . . . Although couched in the technical language of civil procedure, the decision is far more important for what it says about the right to vote. Crediting almost wholly speculative concerns about voter fraud, while discounting the nearly certain disenfranchisement of thousands of eligible voters, the ruling stands on its head a role the Supreme Court has admirably played for over four decades--guarantor of the democratic process. . . . Arizona's Proposition 200 and the Ill-Founded Fear of Individual Voter Fraud. . . . In 2004, Arizona voters approved Proposition 200, which requires that persons registering to vote present proof of citizenship, and that voters present proof of identification when voting. The measure was adopted in response to fears that illegal immigrants were voting and obtaining government benefits. . . . The proponents of Proposition 200 argued that some form of official identification is required for participation in a wide range of activities, including cashing checks, enrolling children in Little League, and even renting videos. Isn't fraud prevention in voting, they asked, at least as important as fraud prevention in these other contexts?

October 31, 2006

Supreme Court hears arguments on legal immunity for feds

By Karen Rutzick

The Supreme Court heard arguments Monday about the extent of federal employees' immunity from on-the-job lawsuits. . . . Under the 1988 Westfall Act, federal employees are immune from suits so long as the Attorney General certifies that they were doing their job when the incident in question occurred. The government then substitutes itself as the defendant. . . . In the case argued Monday, Osborn v. Haley, the high court must decide whether the Attorney General can certify an act as job-related simply by denying that the incident ever occurred. If an employee is sued for an act clearly not in his or her job description, can the government defend the employee anyway if they believe in the employee's innocence? . . . The nine justices peppered both sides with questions Monday morning in the case, which began in Kentucky in the spring of 2002. In Osborn v. Haley, government contractor Pat Osborn sued a Forest Service employee for allegedly convincing her employer, the Land Between the Lakes Association Inc., to fire her. Osborn claimed the employee, Barry Haley, did this after she confronted him for not hiring her for an open contracting officer position with the Forest Service.

Supreme Court Revisits Punitive Damages

With justices divided 4-3 over constitutional limits, views of Roberts and Alito may shape jurisprudence

Marcia Coyle, The National Law Journal

The U.S. Supreme Court is no stranger to challenges to punitive damages awards, but it has never faced a challenge quite like the one it will decide this term. . . . In Philip Morris v. Williams, No. 05-1256, the justices, for the first time, will apply their "guideposts" for judging allegedly excessive punitive awards to a case involving the death of a plaintiff -- a longtime smoker who died of lung cancer -- rather than the usual property or contract dispute. And the tobacco company defendant's conduct in not telling the public about the health risks of smoking was described by a state supreme court as so egregious that the court twice allowed a punitive damages award nearly 100 times the amount of actual damages. . . . The case asks the high court to review the punitive damages award for excessiveness. It also asks the justices to set forth clearly how judges and juries that are considering punitive damages are to weigh harm caused by the defendant's conduct to other smokers who were not parties to the suit. . . . How the court answers the nonparty question will be critical to the ability of American businesses to compete at home and abroad, say business community leaders. . . . The answer to that question will also be essential

October 20, 2006

Gimme an 'S': The High Court's Grammatical Divide

Jonathan Starble, Legal Times 

10-17-06 --As one of its final acts last term, the U.S. Supreme Court issued Kansas v. Marsh, a case involving the constitutionality of a state death-penalty statute. The 5-4 decision exposed the deep divide that exists among the nation's intellectual elite regarding one of society's most troubling issues -- namely, whether the possessive form of a singular noun ending with the letter "s" requires an additional s after the apostrophe. . . . The issue reached a crescendo in Marsh primarily because of two circumstances. First, the statute in question originated from a state with a name ending in "s." Second, the majority opinion was written by a justice whose last name ends in "s." Given the confluence of these factors, it was inevitable that the justices' philosophical differences on matters of American usage would be thrust into the spotlight. . . . A BITTER DIVIDE . . . Justice Clarence Thomas, writing for the Court (and joined by Chief Justice John Roberts Jr. and Justices Samuel Alito Jr., Anthony Kennedy, and Antonin Scalia), concluded that the Kansas statute was not unconstitutional. In reaching this conclusion, Thomas repeatedly referred to the relevant law as Kansas' statute. . . . In response, Justice David Souter wrote a dissent that was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens. The dissent revealed Souter's bitter disagreement with both the substantive conclusion of the majority and the grammatical philosophy of the opinion's author. Whereas Thomas apparently believes that whenever a singular noun ends in "s," an additional "s" should never be placed after the apostrophe, Souter has made equally clear his conviction that an s should always be added after the apostrophe when forming a singular possessive, regardless of whether the nonpossessive form already ends in "s." With this acrimonious undercurrent simmering in the background, Souter boldly began his Marsh dissent as follows: "Kansas's capital sentencing statute provides ... " This dramatic and gratuitous use of the possessive was an obvious attack on Thomas, who, as one of three s-ending members of the Court, is viewed as a role model for the millions of children who grow up with the stigma of grammatical ambiguity attached to their names.

October 16, 2006

High court to hear 2 more Texas capital cases
Panel will decide whether judges are complying with its rulings on faulty jury instructions

By Patty Reinert, Copyright 2006 Houston Chronicle Washington Bureau

The U.S. Supreme Court agreed Friday to hear two more Texas death penalty cases to decide whether lower courts are complying with its previous rulings on faulty jury instructions. . . . The instructions, which guide Texas jurors as they decide between life sentences and death penalties, were rejected by the Supreme Court in 1989 and corrected by the Texas Legislature in 1991. . . . However, decisions in the two cases accepted Friday — and in a similar case the court accepted earlier this month — could eventually help determine whether dozens of death row inmates tried under the old rules will live or die. . . . At issue in the cases — Jalil Abdul-Kabir (also known as Ted Calvin Cole) v. Quarterman and Brent Brewer v. Quarterman — is whether the New Orleans-based U.S. 5th Circuit Court of Appeals correctly analyzed whether Texas juries had the chance to spare the men from execution based on so-called mitigating factors, such as the defendants' low intelligence or childhood abuse.

October 13, 2006

Justices weigh impact of crime victim buttons

By Bill Mears, CNN Washington Bureau

The buttons were 2 to 4 inches around, showing a man killed in a shooting, and were worn by his family at the murder trial of the accused shooter. . . . That silent gesture and the impact it may have had on the jury was hotly debated Wednesday at the U.S. Supreme Court in a case testing the power of federal courts to override a judge's discretion. . . . At issue was whether Matthew Musladin, who was convicted of murder, was denied due process and a fair trial by the presence of the buttons, an act the dead man's parents and brother said was simply an expression of grief and remembrance. . . . The justices appeared split on the issue. . . . "I view the wearing of the buttons," said Justice David Souter, "as something that is abnormal and something that is intended to presumably get the jury's attention. I don't know why otherwise they would be doing it." . . . On the other side, Justice Antonin Scalia dismissed the suggestion jurors would be swayed by a photo. . . . "Let's assume that the buttons were big enough that they could recognize that the buttons were the face of the deceased for whose murder the trial was about," he said. "I mean, gee, the victim's family loved him a lot. Therefore, this guy must be guilty? That doesn't follow at all."

October 11, 2006

High Court Declines to Hear Tobacco Case

Pete Yost, The Associated Press

The Supreme Court on Tuesday refused to consider the case of three small cigarette companies trying to avoid making payments to 30 state governments that reached a huge financial settlement with the giants of the tobacco industry. . . . After the settlement eight years ago in which the four biggest tobacco companies paid $206 billion, each of the 30 states passed a law requiring companies that didn't participate to pay money into escrow funds to satisfy future damage awards in cigarette-related lawsuits. . . . The three small companies sued, alleging each state's escrow statute violated antitrust law. The laws each state passed were substantially identical to model legislation in an appendix to the settlement that had been reached with the biggest companies in the tobacco industry.

Supreme Court Denies Zoloft Patent Case

Chris Rugaber, The Associated Press 

The Supreme Court said Tuesday that it will not hear a case brought by a generic pharmaceutical company that sought to invalidate a patent held by Pfizer Inc. for its blockbuster anti-depression drug Zoloft. . . . The case, brought by Winnipeg, Canada-based Apotex Inc., involved a controversial issue in the pharmaceutical industry: whether generic drug makers are sometimes blocked from issuing new products by brand-name companies that refuse to sue them for patent infringement during the FDA approval process. . . . This refusal to sue can leave the status of patents unresolved and create uncertainty for a generic drug company, since the brand-name company could later sue for patent infringement once the generic firm begins manufacturing and selling the drug. This threat, in turn, can prevent generic companies from proceeding in the first place.

Court won't rethink 'Mary Doe' abortion case

By Bill Mears, CNN Washington Bureau

The Supreme Court rejected an appeal Tuesday from a Georgia woman seeking to reverse a 1973 Supreme Court ruling giving her the right to an abortion. . . . Sandra Cano was part of the original series of landmark rulings from the high court legalizing the medical procedure. The justices without comment refused to reopen the case. . . . Cano, a resident of Atlanta, Georgia, was "Mary Doe" in the Doe v. Bolton appeal that was a companion argument to the more famous Roe v. Wade, both decided on January 22, 1973. . . . While the "Roe" opinion grounded first-trimester access to abortion in a constitutional right to privacy, Doe v. Bolton loosened medical requirements for those seeking to terminate a pregnancy. . . . Cano stated in her appeal that she had never wanted an abortion in the first place, had been living in an abusive relationship, and had been forced by her attorney to fight the abortion option in court. . . . The high court several years ago rejected a similar legal appeal from Norma McCorvey, the "Jane Roe" of Roe v. Wade. McCorvey, a resident of Texas, also sought to overturn the case that gave her the right to an abortion.

Judicial discretion at stake in high court

U.S. Supreme Court to hear case stemming from sentencing of former police officer

By Bruce Gerstman, Contra Costa Times

The U.S. Supreme Court is set to hear arguments Wednesday about a Contra Costa County case that could decide how much discretion California judges have when sentencing convicted criminals. . . . The ruling could change the fundamental laws of sentencing that have guided trial judges for the past three decades. . . . "In terms of impact on the judicial process, this is huge," said Laurie Levinson, Loyola University School of Law professor. "It could blow apart the California sentencing scheme." . . . A jury convicted former Richmond police officer John Cunningham in 2003 of one count of continuous sexual abuse. He had molested a 10-year-old boy for a year, court documents say. . . . Superior Court Judge Theresa Canepa sentenced him to the maximum of 16 years in state prison. . . . In California, judges have discretion to sentence a defendant to one of three levels of punishment -- lower, middle or upper.

South Bay criminal case reaches high court

Buttons Of Victim At Trial Stir Dispute

By Howard Mintz, Mercury News

Since Mathew Musladin fired a bullet that ricocheted off the pavement and killed Tom Studer 12 years ago in San Jose, two families have grieved. . . . Studer's family grieved for a son lost to that bullet and sought justice for his death. Musladin's family grieved for a son lost to prison, a son they insist should never have been convicted. . . . It would be a story as old as the concept of murder itself, except now the worlds of these two families are colliding again in the nation's highest court. This week, the U.S. Supreme Court will consider the legal tension between a family's right to express its grief and outrage in the courtroom and a defendant's constitutional right to a fair trial.

October 11, 2006

The Supreme Court vs. the U.S. Constitution

By Matthew Woessner, FrontPageMagazine.com

By extending Geneva Convention privileges to enemy combatants, the Supreme Court of the United States has dealt a serious blow to the Constitution.  However, while most of the court’s critics focus on the impact such a ruling may have on the trial and interrogation of alleged terrorists, the real danger lies in the majority’s implicate assertion that even in matters of war the justices’ private morality trumps the rule of law. In the case of Hamdan v. Rumsfeld, the court not only ignored a legal directive to drop the case, it practically rewrote a section of the Geneva Convention, forcing the government to abide by obligations to which neither the executive, nor the legislative branches had ever given their consent.  This irresponsible use of judicial authority is a far greater threat to democracy than the trial of foreign nationals captured on the battlefields of distant lands.  . . . Under the laws of war, as outlined by the Geneva Convention, all soldiers are expected to abide by a code of conduct designed to protect civilians from the ravages of combat.  As a reward for conducting warfare honorably, the Geneva Convention entitles lawful combatants to relatively good treatment when captured by the enemy.  Should any questions arise as to their conduct, either before or after their capture, lawful combatants are entitled to a prosecution only by a military court marshal, which much like a civilian trial, offers considerable protections to the accused. 

As Term Begins, Justices Reject 1,900 Appeals

From News Services
As the Supreme Court began a new term yesterday in which it will rule on landmark social issues, it rejected about 1,900 appeals that piled up during the summer recess. . . . Among the cases the justices declined to hear were a challenge to a Texas law that bans the sale of sex toys, objections by parents in California to a mandatory class on Islam, and an appeal of lower-court rulings that the managers of Detroit newspapers acted improperly when they fired striking workers. . . . The nation's highest court reconvened, as required, on the first Monday in October. But because this year that day fell on Yom Kippur, the holiest day of the Jewish calendar, the session was brief -- about 10 minutes -- and the justices did not hear oral arguments. The court's two Jewish members, Justices Ruth Bader Ginsburg and Stephen G. Breyer, were absent.

---

---

Featured Article from Lawyers USA:

U.S. Supreme Court begins new term

By Correy E. Stephenson Staff writer

The U.S. Supreme Court begins its 2006-2007 term today with an opening conference.

Oral arguments kick off on Oct. 3.

To date, the justices have granted certiorari in 31 cases on a variety of topics, ranging from punitive damage awards to bankruptcy rights to multiple patent issues. The Court will also deal with the repercussions of major decisions like Blakely v. Washington (sentencing) and Crawford v. Washington (Confrontation Clause) when it looks at the issue of retroactivity.

Change continues at the Court this term: for the first time, same-day transcripts of oral arguments will be made available on its website, www.supremecourtus.gov.

Previously, transcripts were posted approximately two weeks after argument, although exceptions were made for certain cases with significant public interest, likeBush v. Gore. The addition of same-day transcripts has been attributed to Chief Justice John Roberts' stated goal of making the Court more accessible.

Here is a preview of some key cases the Court has agreed to hear this term and their potential impact.

The future of punitives

Does the Constitution allow juries to award damages in order to punish a company for the effects of its conduct on others not directly before the court?

May a court exceed a single-digit ratio for punitives to compensatories if it finds a company's misconduct to be extraordinarily reprehensible?

The Court will answer these questions when it reviews a decision from the Oregon Supreme Court.

Mayola Williams sued the cigarette manufacturer Philip Morris on behalf of her husband, who died of lung cancer caused by lifelong smoking, alleging both negligence and fraud.

She based her fraud claim on a 40-year publicity campaign allegedly undertaken by the cigarette industry in general and the defendant in particular to undercut published concerns about the dangers of smoking.

A jury found in the plaintiff's favor on both of her causes of action, awarding her economic and noneconomic damages. In addition, it awarded her punitive damages of $79.5 million.

The defendant appealed, arguing that the punitive damages award violated due process.

A trial judge reduced the award, but an appellate court reinstated it. The U.S. Supreme Court then vacated the award in light of State Farm v. Campbell, 123 S.Ct. 1513 (2003), and ordered reconsideration.

But on remand, the Oregon Supreme Court allowed the original award to stand.

"[T]his is by no means an ordinary case. [The defendant's] conduct here was extraordinarily reprehensible, by any measure of which we are aware. It put a significant number of victims at profound risk for an extended period of time. The State of Oregon treats such conduct as grounds for a severe criminal sanction, but even that did not dissuade [the defendant] from pursuing its [course of action]…

"The defendant engaged [with others] in a massive, continuous, near-half-century scheme to defraud the plaintiffs and many others, even when [the defendant] always had reason to suspect - and for two decades absolutely knew - that the scheme was damaging the health of a very large group of Oregonians - the smoking public - and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against [the defendant] comported with due process," the court said.

According to Victor Schwartz, general counsel for the American Tort Reform Association, the real question before the Supreme Court is "how focused does the punitive damage award have to be on the specific plaintiff?"

Allowing plaintiffs to introduce evidence of a defendants' past bad acts smacks of double jeopardy, Schwartz argued. "It goes against the fundamental fairness in our system to punish an entity multiple times for the same activity."

But the plaintiff's lawyer, Robert S. Peck of the Washington, D.C.-based Center for Constitutional Litigation, called the double jeopardy argument a "red herring."

"The purpose of punitive damages is to make companies behave and deter others from engaging in similar misconduct," he said.

Philip Morris USA v. Williams U.S. Supreme Court No. 05-1256. Certiorari granted May 30, 2006. Ruling below: 127 P.3d 1165 (Or. 2006).

Sentencing

In her dissent in Blakely v. Washington, 124 S.Ct. 2531 (2004) - which held that a jury must find all facts used to increase a defendant's sentence - Justice Sandra Day O'Connor predicted the majority's decision would "wreak havoc" on the court system.

Two years later, the justices are facing another Blakely case. The Court will hear oral argument on whether Blakely established a new rule that should apply retroactively, reviewing a 9th Circuit decision holding that it should not.

Lonnie Lee Burton was convicted by a jury of burglary, rape and robbery, and was sentenced to 562 consecutive months. He appealed his sentence, and during the process, the Supreme Court decided Blakely.

Burton filed a habeas petition, but the state argued that the new rule Blakely established did not apply retroactively on collateral review, and that the petition should therefore be dismissed.

The 9th Circuit agreed in an unpublished opinion.

A number of courts have reached a similar conclusion, including state courts in Minnesota and Washington.

But because the majority of courts have held Blakely isn't retroactive, the fact the Court even granted cert is "heartening," said Jeffrey Fisher, a partner at Davis Wright Tremaine and professor at Stanford Law School who successfully argued Blakely and is now representing Burton.

Burton v. Waddington U.S. Supreme Court No. 05-9222. Certiorari granted June 5, 2006. Ruling below: 142 Fed.Appx. 297 (9th Cir. 2005).

The Confrontation Clause and retroactivity

The Court is set to determine whether a prior decision precluding the admission of all "testimonial" evidence unless the defendant had the opportunity to cross-examine the witness should apply retroactively to cases on collateral review.

It will review a 9th Circuit holding that Crawford v. Washington, 124 S.Ct. 1354 (2004), applies retroactively to a habeas petition brought under the Anti-Terrorism and Effective Death Penalty Act.

Marvin Howard Bockting was convicted of sexually assaulting his 6-year-old stepdaughter. The child was interviewed by a detective but contradicted herself at the preliminary hearing before she broke down and was declared an unavailable witness. The defendant argued her interview with the detective should not have been admitted because, under Crawford, he wasn't able to cross-examine her.

The 9th Circuit agreed, reversing the defendant's conviction and life sentence.

"[A]n analysis of the historical application of the Confrontation Clause cases leads to the conclusion that Crawford announces a new rule," the court said.

It then determined that because the new rule in Crawford was procedural, to apply retroactively it had to implicate "the fundamental fairness and accuracy of the criminal proceeding" and rework the understanding of bedrock criminal procedure.

"That the Crawford requirement is fundamental to our legal regime is beyond dispute. … Hundreds of years of tradition have embedded this notion as a fundamental role. … [A]t the heart of the Court's concerns in Crawford was the reliability of admitted evidence. Where admitted evidence is unreliable, the accuracy of convictions is seriously undermined. That the rule in Crawford is one without which the accuracy of convictions would be seriously undermined is further borne out by the Court's own description of its prior doctrine as a 'rare case' of 'fundamental failure.' The difference between pre- and post-Crawford Confrontation Clause jurisprudence is not the sort of change that can be dismissed as merely incremental. Instead, it is an 'absolute pre-requisite to fundamental fairness,'" the court said.

Franny Forsman, a federal public defender in Las Vegas representing Bockting, said that the decision could impact a large number of cases if the Court holds Crawford is a watershed decision that applies retroactively.

Gonzaga University School of law professor Brooks Holland agreed.

In addition to those defendants in jail who might challenge their sentences, Holland said that anyone convicted using hearsay testimony might seek a reversal if that conviction continues to impact his or her life - being classified as a felon and not being able to carry a weapon, or still being subject to a restraining order in a domestic violence case, for example.

But because of the potential number of post-conviction relief petitions - and because of the Court's reluctance to declare a case to be a watershed decision and further upset the status quo - Holland doubts the justices will uphold the 9th Circuit, which is the only circuit to apply Crawford retroactively.

Whorton v. Bockting, No. 05-595. Certiorari granted May 15, 2006. Ruling below: 399 F.3d 1010 (9th Circ. 2005).

Bankruptcy rights

Does a Chapter 7 debtor have an absolute right to convert to Chapter 13?

The Court will review a decision from the 1st Circuit answering that question in the negative.

The debtor, Robert Louis Marrama, transferred real estate into a spendthrift trust prior to filing for Chapter 7 bankruptcy and designated himself as the sole beneficiary. He then filed his petition, in which he denied making any pre-petition transfers and asserted the IRS didn't owe him a tax refund, although it did. He later filed a motion to convert to Chapter 13.

The bankruptcy court refused to permit the conversion on the ground that the deceptive statements about his financial affairs demonstrated the debtor's bad faith.

The debtor appealed, arguing that Sect. 706(a) of the Bankruptcy Code gave him an absolute right to convert: "The debtor may convert a case under this chapter to a case under Chapter 11, 12 or 13 of this title at any time, if the case has not been converted. … Any waiver of the right to convert a case under this subsection is unenforceable."

But the 1st Circuit disagreed.

"Section 706(a) simply provides that the debtor 'may' convert. … '[M]ay' often suggests conditionality, signifying that the event or status described is in no sense to be considered a foregone conclusion. Thus, the phrase 'may convert' reasonably may suggest that the right to convert is merely presumptive, and may be exercised only if the debtor meets the preconditions for eligibility established in [the Code], or even then in the absence of other exceptional circumstances. In other words, the debtor 'may' succeed in an attempted conversion, but not necessarily in all conceivable instances," the court said.

Although the legislative history for Sect. 706(a) describes the debtor's right as absolute, "[i]t is plainly implicit in this legislative observation, however, that such an opportunity is to be accorded only to honest debtors," the court said.

It cited similar decisions from the 4th and 5th Circuits. But David G. Baker, a Boston bankruptcy attorney who represents Marrama, said the 6th Circuit and the 9th and 10th Circuit Bankruptcy Appellate Panels have sided with his client's position.

In the view of Philadelphia bankruptcy attorney and National Association of Consumer Bankruptcy Attorneys president Henry Sommer, the law is clear.

"The Bankruptcy Code has other mechanisms to deal with the potential for abuse - a Chapter 13 can be dismissed if the court finds it was filed in bad faith, or can choose not to confirm the plan," he said. "But the plain language of the legislative history is clear that every debtor has the right to convert one time."

Marrama v. Citizens Bank of Massachusetts, No. 05-996. Certiorari granted June 12, 2006. Ruling below: 430 F.3d474 (1st Cir. 2005).

Employment

Can a Title VII plaintiff alleging disparate pay only recover based on the acts of discrimination that took place within the statute's 180-day filing requirement?

The Court will review a decision from the 11th Circuit which held that recovery should be limited.

A federal jury awarded Lilly M. Ledbetter $3.8 million in her Title VII discrimination suit, in which she claimed that Goodyear Tire had paid her less than her male counterparts for 20 years.

On appeal, the employer argued that recovery should be limited to acts of discrimination that took place within the 180-day time period prior to the plaintiff's filing a charge with the EEOC.

The 11th Circuit agreed, reversing the jury verdict and granting the employer judgment as a matter of law.

"Under Sect. 706 of Title VII, only those 'unlawful employment practice[s]' that are complained of in a timely-filed charge of discrimination to the EEOC can form the basis for Title VII liability. … It is fundamental that for a Title VII plaintiff to prevail on any type of disparate treatment claim, he or she must point to some specific, conscious conduct that was tainted by the alleged improper consideration. In a case in which the plaintiff complains of discriminatory pay, there are only two possible sources of such conduct: the decisions setting the plaintiff's salary level or pay rate, and the issuance of paychecks reflecting those decisions...

"Whether it is a pay-setting decision or the issuance of a confirming paycheck that is viewed as the operative act of discrimination, the act is, like 'termination, failure to promote, denial of transfer, or refusal to hire,' discrete in time, easy to identify, and - if done with the requisite intent - independently actionable."

But, the court said, the plaintiff "can state a timely cause of action for disparate pay only to the extent that the 'discrete acts of discrimination' of which she complains occurred within the limitations period created by her EEOC questionnaire. Any acts of discrimination affecting her salary occurring before then are time-barred."

According to Christine Webber, an employment attorney at Cohen, Milstein, Hausfeld & Toll in Washington, D.C., no other circuit has held this way.

Webber, who has co-authored an amicus brief in support of the plaintiff on behalf of the National Employment Lawyers Association, said that if the Court affirmed the 180-day limitation, it would actually encourage litigation.

"People would be forced to sue right away, within six months of a new job, or they would limit their recovery," she said.

Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074. Certiorari granted June 26, 2006. Ruling below: 421 F.3d 1169 (11th Cir. 2005).

Patents

The Court has accepted two patent cases with the potential to have a huge impact, according to Dunlap, Codding and Rogers patent attorney Matthew Buchanan.

In KSR International v. Teleflex, the court will examine the issue of "obviousness" and whether a patent application can be denied without proof of teaching, suggestion or motivation to modify or combine prior art.

Teleflex sued KSR, a competitor, for alleged infringement of its patent for the technology of a gas pedal used in cars and light trucks. A district court granted summary judgment for KSR, invaliding Teleflex's patent because it was "obvious."

But the Federal Circuit reversed, ruling that the district court applied an incomplete teaching-suggestion-motivation test.

"Under our case law, whether based on the nature of the problem to be solved, the express teachings of the prior art, or the knowledge of one of ordinary skill in the art, the district court was required to make specific findings as to whether there was a suggestion or motivation to combine the teachings of [a prior patent] with an electronic control in the particular manner claimed by claim 4 of [Teleflex's patent]. That is, the district court was required to make specific findings as to a suggestion or motivation to attach an electronic control to the support bracket of the … assembly," the court said.

If the Supreme Court changes the teaching-suggestion-motivation test, "it would affect what is patentable across all industries," said Buchanan, who practices in Oklahoma City.

In the second case, MedImmune v. Genentech, the justices will determine if a patent licensee in good standing can challenge the validity of a patent, or whether it must first breach its license agreement in order to sue.

MedImmune was a licensee of Genentech, which owned patented technology relating to the use of cell cultures to manufacture human antibodies. MedImmune brought a declaratory action against Genentech, challenging the validity of its patents, but the case was dismissed by a district court as non-justiciable.

 The Federal Circuit affirmed.

"[B]ecause MedImmune continues to comply fully with the license terms, leaving no possibility of infringement suit or license cancellation by Genentech, there is no 'case of actual controversy' as required by the Declaratory Judgment Act … [T]he fact that the license subject matter is intellectual property does not create a policy-driven exception to these requirements," the court said.

Buchanan described this as a "sleeper" case.

"The Court could decide from a policy standpoint that it wants licensees to have every possible avenue to challenge patents, because it doesn't want bad patents out there," he explained. That "could change decades of precedent and really open the door to more patent litigation."

KSR International Co. v. Teleflex, Inc., No. 04-1350. Certiorari granted June 26, 2006. Ruling below: 119 Fed.Appx. 282 (Fed.Cir. 2005).

MedImmune, Inc. v. Genentech, Inc., No. 05-608. Certiorari granted Feb. 21, 2006. Ruling below: 427 F.3d 958 (Fed. Cir. 2005).

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com

Links to cases noted above provided by Victims-of-Law, Inc.

Supreme Court Accepts Arizona Death Penalty Case

The Associated Press 

9-27-06 -- The Supreme Court accepted an appeal Tuesday from Arizona, which wants to execute a twice-convicted killer who says his lawyer didn't do enough to ward off a death sentence. . . . Justices said they would review a decision by the 9th U.S. Circuit Court of Appeals, which said a lower court should consider Jeffrey Landrigan's claims that his lawyer was ineffective. . . . Landrigan escaped from an Oklahoma prison in 1989, where he was serving a 20-year term for murdering an acquaintance. A month later, he killed Chester Dyer, who picked up men on the Phoenix streets by flashing large sums of money. . . . As Landrigan and the man were drinking beer in the victim's Phoenix apartment, Landrigan strangled Dyer with an electrical cord and repeatedly punctured him with a screwdriver. He was convicted of killing Dyer and sentenced to death. . . . Dale Baich, who represents Landrigan in his appeals, said his client might have won a life term instead of a death sentence if his trial lawyer had submitted evidence that he was predisposed to violence and suffered brain damage that made him unable to appreciate his crimes.

Abortion, Race Cases Test Roberts, Alito Adherence to Precedent

By Greg Stohr

9-27-06 -- (Bloomberg) -- The U.S. Supreme Court term that begins next week will test the willingness of Chief Justice John Roberts and Justice Samuel Alito to stand by previous high court rulings that bolstered affirmative action and abortion rights. . . . Roberts, 51, and Alito, 56, pledged after they were nominated last year that they would respect past decisions. Roberts warned in Senate testimony of a ``jolt to the legal system'' when the high court reverses itself. . . . Conservative groups nonetheless are asking the two new justices to help the court roll back precedents in both areas of law. The challenge is most direct in a fight over a federal ban on what opponents call ``partial birth'' abortion. The high court in 2000 struck down an almost identical Nebraska law. . . . How the court deals with the 2000 precede