United States Supreme Court (2009-2010) Session

SCOTUS Spring 2010 Decisions
(2009-2010 Session)

July 2010

Supreme Court Trims 'Miranda' Warning Rights Bit by Bit

Justice Sotomayor says the majority's latest decision 'turns Miranda upside down'

Jesse J. Holland, The Associated Press, Law.com

08-02-10 -- You have the right to remain silent, but only if you tell the police that you're remaining silent. . . . You have a right to a lawyer -- before, during and after questioning, even though the police don't have to tell you exactly when the lawyer can be with you. If you can't afford a lawyer, one will be provided to you. Do you understand these rights as they have been read to you, which, by the way, are only good for the next two weeks? . . . The Supreme Court made major revisions to the now familiar Miranda warnings this year. The rulings will change the ways police, lawyers and criminal suspects interact amid what experts call an attempt to pull back some of the rights that Americans have become used to over recent decades.

Under the U.S. Supreme Court: Opening prison doors for healthcare

By Michael Kirkland, UPI  

07-25-10 -- The U.S. Supreme Court says it will hear argument next term on whether federal judges can force California to release nearly 50,000 prison inmates, mainly because of problems with providing healthcare. . . . American families struggling with their own health insurance might have trouble understanding how a convicted criminal can get a free pass from prison because of inadequate healthcare. But the federal trial judges' panel in San Francisco that ordered the release said there was absolutely no other practical way to fix the constitutional problem. . . . If the prisoner plaintiffs in California win their case before the Supreme Court -- by no means a done deal -- it could encourage an explosion of such cases across the country where many U.S. states are struggling with reduced revenues and crowded prisons.

Lawyering Suits Pile Up at High Court

During 2009-2010 term, some 20 percent of the decision docket involved cases on lawyering

Marcia Coyle, The National Law Journal

07-06-10 -- From client advice to attorney fees to ineffective assistance of counsel, the U.S. Supreme Court decided an unusually large number of cases last term involving how lawyers do their jobs. . . . The justices took up 16 cases -- 10 of which were fully briefed and argued, and six of which were disposed of in per curiam -- unsigned -- decisions. In total, the lawyering cases amounted to nearly 20 percent of the Court's decision docket. . . . Professor Renee Knake of Michigan State University College of Law, who teaches professional responsibility and has been tracking the cases, said the large number of lawyering cases is "nothing short of a revolution" in the field of lawyers' ethics and something that all lawyers need to note. During a typical term, she said, the Court hears one to three cases addressing the role of attorneys or the practice of law. Since 1998, the high-water mark was five cases in the 2003 term.

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June 2010

U.S. Supreme Court Orders New Review of Siegelman, Scrushy Case

Bob Johnson, The Associated Press, Law.com

06-30-10 -- The U.S. Supreme Court on Tuesday ordered a new review of the convictions in the government corruption case against former Alabama Gov. Don Siegelman and ex-HealthSouth CEO Richard Scrushy. . . . The Court's brief order vacated the decision of the 11th U.S. Circuit Court of Appeals, which had upheld their convictions, and ordered the lower court to review the appeals in light of a ruling that went against what is known as the "honest services" fraud law. . . . Last week the justices found fault with the anti-fraud law in the case of former Enron chief Jeffrey Skilling, and defense attorneys for Siegelman and Scrushy had hoped that ruling would give them a new chance to challenge their convictions.

High Court All Over the Map in 'Bilski'

Tony Mauro, The National Law Journal

06-29-10 -- After more than 60 briefs on both sides, oral arguments last November and an eight-month vigil for the ruling among patent lawyers, the decision in Bilski v. Kappos issued Monday may have done little to end the debate over what kinds of innovations are or are not eligible for patents. . . . The long-awaited decision was supposed to resolve the patent eligibility of business methods or processes that are not tied to a new machine or don't transform anything. But while rejecting one such patent, it did not rule out method patents in general, underlining that it "need not define further what constitutes a patentable process" beyond looking to guideposts provided by past U.S. Supreme Court decisions. . . . Justice Anthony Kennedy's majority decision agreed with the U.S. Court of Appeals for the Federal Circuit that the specific patent at issue -- a way of hedging against weather-related losses in the energy industry -- should not have been granted. All nine justices agreed that it was too abstract for patentability.

Justices Expand Second Amendment Gun Rights to States

Mike Scarcella, The National Law Journal

06-29-10 -- The U.S. Supreme Court on Monday expanded the reach of the Second Amendment to the states, opening the door to challenges of local handgun laws across the country. . . . In McDonald v. Chicago, a 5-4 majority said that a handgun ban in Chicago may have violated Second Amendment rights established in the Court's landmark 2008 decision in District of Columbia v. Heller. Justice Samuel Alito Jr., who delivered the majority opinion for the Court in McDonald v. Chicago, wrote that the right to keep and bear arms is "among those fundamental rights necessary to our system of liberty." Alito's 45-page opinion said the right is fully binding on the states -- a move limiting, but not eliminating, local and state efforts to craft measures to combat social problems. . . . "Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right," Alito wrote. Joining Alito were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. The decision in Heller, which struck down a District of Columbia law that prohibited the possession of handguns in the home, did not universally mean a person can keep and carry any weapon in any manner. Alito adopted that language, providing some level of reassurance to anti-gun-violence advocates.

Sarbanes-Oxley Survives High Court Ruling on Accounting Board

Justices find board member protections violate the Constitution, while leaving intact most of SOX

Tony Mauro and Marcia Coyle, The National Law Journal

06-29-10 -- In a major separation-of-powers ruling, the U.S. Supreme Court on Monday said that members of an accounting oversight board created as part of the Sarbanes-Oxley Act were too insulated from presidential authority to be part of an accountable executive branch. . . . Under the law, meant to respond to the Enron and WorldCom accounting scandals, the new board was given powers to register, inspect and, if necessary, discipline public accounting firms. Its five members were appointed by the Securities and Exchange Commission, whose members, in turn, are appointed by the president. But members of both bodies can only be removed for "good cause," not for policy disagreements.

Supreme Court Upholds Law School's Anti-Discrimination Policy

Tony Mauro and Marcia Coyle, The National Law Journal

06-29-10 -- The Supreme Court on Monday upheld a state law school's anti-discrimination policy that requires recognized student groups to admit "all comers" as members, over the objection of a religious group that did not want to allow nonadherents to join. The Christian Legal Society chapter at the University of California Hastings College of the Law argued that the policy violated its First Amendment rights to free expression, free exercise of religion and freedom of association by requiring it to allow members who do not share their religious beliefs. . . . But the high court ruled, 5-4, that the policy is a "reasonable and viewpoint-neutral" condition placed on becoming a recognized group, which entitles organizations to certain funding and access to campus facilities. Justice Ruth Bader Ginsburg noted that the religious group is free to exclude nonadherents if it forgoes recognized status. "Hastings ... is dangling the carrot of subsidy, not wielding the stick of prohibition," Ginsburg wrote. She dismissed concerns voiced by the society that the policy would encourage "hostile takeovers" of groups like theirs by nonadherents whose aim is sabotage. "This supposition strikes us as more hypothetical than real," she wrote. "Students tend to self-sort."

Supreme Court strikes down ban on handguns

The court rules in a 5-4 decision that Chicago's ban on handguns is unconstitutional, extending the 2nd Amendment's protections to the state and local levels.

By David G. Savage, Tribune Washington Bureau    Los Angeles Times

06-28-10 -- The Supreme Court reversed a ruling upholding Chicago's ban on handguns Monday and extended the reach of the 2nd Amendment as a nationwide protection against laws that infringe on the "right to keep and bear arms." . . . The 5-4 decision appears to void the 1982 ordinance, one of the nation's strictest, which barred city residents from having handguns for their own use, even at home. . . . The ruling has both local and national implications.

Justices Extend Gun Owner Rights Nationwide

Mark Sherman, The Associated Press, Law.com

06-28-10 -- The Supreme Court held today that Americans have the right to own a gun for self-defense anywhere they live, advancing a recent trend by the John Roberts-led bench to embrace gun rights. . . . By a 5-4 vote, the justices cast doubt on handgun bans in the Chicago area, but signaled that some limitations on the Constitution's "right to keep and bear arms" could survive legal challenges. . . . Justice Samuel Alito, writing for the Court, said that the Second Amendment right "applies equally to the federal government and the states." . . . The Court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority. . . . Two years ago, the Court declared that the Second Amendment protects an individual's right to possess guns, at least for purposes of self-defense in the home.

High Court Strikes Down Part of Anti-Fraud Law

The Associated Press, Law.com

06-28-10 -- The Supreme Court today struck down part of the anti-fraud law enacted in response to Enron and other corporate scandals from the early 2000s, but said its decision has limited consequences. . . . The justices voted 5-4 that the Sarbanes-Oxley law enacted in 2002 violates the Constitution's separation of powers mandate. The Court says the president must be able to remove members of a board that was created to tighten oversight of internal corporate controls and outside auditors.

Emotional, Historic Morning at the Supreme Court

Tony Mauro, The National Law Journal

06-28-10 -- On a memorable morning at the Supreme Court, the justices said farewell to Justice John Paul Stevens on his final day before retiring, noted the death of Justice Ruth Bader Ginsburg's husband Martin, and issued landmark opinions expanding Second Amendment rights, disallowing the Bilski business methods patent, and striking down a part of the Sarbanes-Oxley Act. The Court also denied review in seven petitions filed by tobacco companies and the U.S. government challenging different parts of a lower court ruling holding tobacco companies liable under federal racketeering laws for decades of deception about the dangers of cigarettes. . . . Ginsburg, whose husband died Sunday, was on the bench as usual as Chief Justice John Roberts Jr. opened the session by saying he had the "very sad duty" of reporting that Martin Ginsburg, a tax law expert and teacher, had died. Roberts spoke of Ginsburg's "sharp wit and engaging charm," and said Martin Ginsburg had become friends with all the justices. . . . Then it was on to the lengthy announcement of the opinions -- the three mentioned above as well as a fourth, Christian Legal Society v. Martinez (pdf), in which the Court upheld a state university law school's anti-discrimination policy that requires recognized student groups to allow "all comers" to join. Justice Ginsburg read from her opinion.

Supreme Court Says Some Business Methods May Be Patented, But Not Bilski Method

By Debra Cassens Weiss, ABA Journal

06-28-10 -- The U.S. Supreme Court has ruled that some business methods may be patented, but not a method of hedging risk in commodities trading that was at issue in Bilski v. Kappos (PDF). . . . The court said the Patent Act does not automatically exclude business methods from being patented, SCOTUSblog reports. The court said the “machine or transformation test"—which requires business methods to be tied to a machine or to produce some physical transformation to be eligible for a patent—is not the only test to determine whether business methods may be patented, the blog says. . . . “This court’s precedents establish that the machine-or transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes” under the patent law, Justice Anthony M. Kennedy wrote in the majority opinion. But “the machine-or transformation test is not the sole test for deciding whether an invention is a patent-eligible ‘process.’ ”

Arizona Immigration Comes to High Court

by: Lee Ross, FOXNews (blog)

06-28-10 -- A controversial measure Arizona lawmakers passed to crack down on illegal immigration will now go before the Supreme Court, the justices announced Monday, but this is a different law from the one recently passed--and yet to go into effect--that has generated so much attention. . . . The Court's decision to take the case places a harsh spotlight on Homeland Security Secretary Janet Napolitano for an apparent reversal on her views of how best to address immigration problems. It also puts added focus on Supreme Court nominee Elena Kagan and her role as Solicitor General in asking the high court to take the case. . . . The 2007 Arizona law now under review was an effort by state lawmakers to crack down on companies that hire illegal workers. The law sanctions employers who knowingly hire illegal employees. It also forces employers to participate in the national E-Verify database that tracks employment eligibility. . . . Critics contend the Legal Arizona Workers Act usurps the authority of the federal government which has traditionally enforced immigration laws. . . . "Business, labor, and civil rights organizations, which only rarely see eye to eye, joined in challenging the statute below; support the petition here; and individually and collectively recognize the fundamental need for review and clarification of the law by this Court," U.S. Chamber of Commerce lawyer Carter Phillips wrote to the Supreme Court asking the justices to take the case and ultimately overturn the law. . . . Phillips said Arizona's effort is part of a "crazy-quilt of state and local immigration statutes" that give rise to uncertainty for employers; many of whom have operations in multiple states. . . . Arizona argues that concern is unwarranted because its law works in concert with federal measures. "Although Congress prohibited the federal government from requiring employers throughout the country to use E-Verify, it did not prohibit state policymakers from requiring employers within their jurisdiction to use this federal program," Arizona Solicitor General Mary O'Grady told the Court asking the justices to deny review.

Supreme Court Upholds Law School Policy Requiring Student Groups to Admit ‘All Comers’

By Debra Cassens Weiss, ABA Journal

06-28-10 -- The U.S. Supreme Court has upheld a law school’s policy requiring all comers to be admitted to officially recognized student groups. . . . Justice Ruth Bader Ginsburg wrote the majority opinion (PDF), SCOTUSblog reports. She was joined by four other justices. . . . The Christian Legal Society had contended its First Amendment rights of free association were violated when the University of California's Hastings College of the Law refused to recognize the group. The case had pitted the law school’s right to enforce its nondiscrimination policy against the right of a Christian legal group to exclude gays and nonbelievers.

In 4 Key Rulings, Supreme Court Limits Fraud Statutes' Reach

On the civil side, justices ruled that securities fraud class actions involving foreign investors or firms cannot be filed in U.S. courts unless shares were bought or sold within the U.S.

Tony Mauro, The National Law Journal

06-25-10 -- In four high-impact decisions Thursday, the U.S. Supreme Court significantly limited the scope of federal laws used by prosecutors and plaintiffs in pursuing alleged corporate fraud. . . . In the post-Enron case of Skilling v. U.S. and the related cases of media mogul Conrad Black and Alaska legislator Bruce Weyhrauch, the high court re-defined the "honest services" criminal fraud statute to cover only bribes and kickbacks, instead of the range of illicit activities prosecutors have used the law to punish. . . . "There are many things that are no longer criminal today," said Proskauer Rose appellate co-head and former federal prosecutor Mark Harris. "It is going to be much harder to prosecute in the farthest reaches of fraud." . . . On the civil side, the Court also ruled in Morrison v. National Australia Bank that securities fraud class actions involving foreign investors and foreign firms cannot be filed in U.S. courts unless shares were sold or purchased within the United States. The bright-line rule replaced broader "conduct" and "effects" tests that let in foreign disputes that had more remote connections to U.S. soil.

High Court Rejects Effort to Keep Names of Petition Signers Secret

Marcia Coyle, The National Law Journal

06-25-10 -- Public disclosure of the names and addresses of signers of referendum petitions does not violate the First Amendment, the U.S. Supreme Court ruled on Thursday. . . . The justices, voting 8-1, rejected a broad challenge to the state of Washington's Public Records Act in a case stemming from a referendum on a state law that extended benefits to same-sex couples. . . .Writing for the majority in Doe v. Reed, Chief Justice John Roberts Jr. said public disclosure of referendum petitions in general is "substantially related to the important interest of preserving the integrity of the electoral process." . . . However, while rejecting the broad First Amendment challenge, the majority held open the possibility that the groups seeking anonymity in this particular case could press a narrower challenge. They could try to show, Roberts said, that the state law is unconstitutional as applied to their particular situation in which they claim that disclosure would subject them to harassment, threats or reprisals.

High Court Narrows 'Honest Services' Fraud Law

Tony Mauro, The National Law Journal

06-24-10 -- Speed-reading will be a valued skill for Supreme Court-watchers today. The justices, racing toward the finish line of the current term, handed down seven separate decisions this morning spanning 286 pages of written text, by our count. The main upside of this avalanche of paper is that the Court confirmed that it will finish its work for the term next Monday, with four cases left to decide. Unless the Court throws up its hands and orders a re-argument next term, that means the long-awaited Bilski v. Kappos patent ruling will be issued Monday. . . . Tops among the seven announced today are the three "honest services" fraud cases -- Skilling v. United States (pdf), Black v. United States (pdf) and Weyhrauch v. United States (pdf) -- that resulted in a significant narrowing of the law to reach only bribery and kickback schemes. Justice Ruth Bader Ginsburg wrote all three, with Skilling as the lead decision. In that case, the Court also rejected former Enron executive Jeffrey Skilling's claim that a presumption of juror prejudice should have disqualified Houston, where many victims of the Enron collapse live, as a location for the trial.

Justices Limit Securities Fraud Suits by Foreign Investors

The Associated Press, Law.com

06-24-10 -- The Supreme Court has put new limits on foreign investors who want to use U.S. securities law and U.S. courts to sue foreign firms for fraud. . . . The Court said today that foreigners may not sue American or foreign firms for misconduct in connection with securities traded on foreign exchanges. . . . The case involved a challenge from Australian investors who want to sue the Melbourne-based National Australia Bank for securities fraud in U.S. federal court. The investors say they should have access to American courts because the claim of fraud relies on the actions of a bank-owned mortgage servicing company in Florida. . . . "This case involves no securities listed on a domestic exchange," Justice Antonin Scalia said in his majority opinion. The court voted 8-0 against the investors. Justice Sonia Sotomayor took no part in the case.

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Supreme Court Upholds Law Criminalizing 'Material Support' for Terrorist Groups

Law professor says ruling marks the first time the Court has found a statute restricting speech to satisfy the demanding 'strict scrutiny' standard

Tony Mauro, The National Law Journal

06-22-10 -- The U.S. Supreme Court on Monday upheld the federal law criminalizing "material support" for designated terrorist groups (pdf), rejecting complaints that the law is so vague that it would stifle political speech by groups with peaceful intent. . . . The 6-3 decision was a major victory for government prosecutors, who frequently use the statute as a weapon to neutralize individuals with suspected ties to terrorist groups. In most war-on-terror cases the Supreme Court has ruled on since the Sept. 11, 2001, attacks, the government has not fared nearly as well. The decision may also be a boost for Solicitor General Elena Kagan, who defended the statute at oral argument Feb. 23. Her Senate confirmation hearing for a seat on the Supreme Court begins on June 28. . . . The law, which has roots in the 1996 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), was challenged by human rights groups that fear prosecution for peaceful training and education efforts they conduct to defuse disputes that can lead to terrorism. . . . The plaintiffs in the case were the Humanitarian Law Project, its president Ralph Fertig and others seeking to aid the Kurdistan Workers Party, which advocates establishing a Kurdish state in Turkey, and the Tamil Tigers, which seeks creation of an independent Tamil state in Sri Lanka. Both were designated as terrorist groups under the law by Secretary of State Madeleine Albright in 1997.

High Court Restricts Judges' Role in Deciding Arbitration Fairness

Marcia Coyle, The National Law Journal

06-22-10 -- Continuing a strong pro-arbitration bent, the U.S. Supreme Court on Monday made it more difficult for consumers and employees to challenge the fairness of arbitration agreements in court. . . . In Rent-A-Center, West v. Jackson, the justices divided, 5-4, in holding that an arbitrator, not a district court, will decide whether an arbitration agreement as a whole is unconscionable if the agreement explicitly delegates that issue to the arbitrator and the consumer or employee has failed to challenge the specific delegation clause. . . . "It greatly limits the ability of consumers and employees to challenge the fairness of arbitration agreements," said Deepak Gupta of Public Citizen Litigation Group, co-counsel to Antonio Jackson, along with Public Justice and Ian Silverberg of Hardy & Associates in Reno, Nev., who argued the case.

High Court Upholds Anti-Terror Law

Tony Mauro, The National Law Journal

06-21-10 -- In one of four decisions handed down today, the Supreme Court ruled 6-3 in favor of the law making it a crime to knowingly provide "material support" to designated foreign terrorist organizations. The law was challenged on First Amendment grounds in Holder v. Humanitarian Law Project, and Humanitarian Law Project v. Holder (pdf) . Solicitor General Elena Kagan, now a Supreme Court nominee, defended the statute at the oral argument in February, in opposition to Georgetown University Law Center professor David Cole. . . . Chief Justice John Roberts Jr. wrote for the majority that the law is not unconstitutionally vague, but he offered some criticism of the government's position in the case. Roberts wrote that the government had gone "too far" by claiming that only conduct, not speech, was involved in the litigation.

Supreme Court Upholds Law Banning Even Peaceful Support for Terrorist Groups

By Debra Cassens Weiss, ABA Journal

06-21-10 -- In the first major test of whether anti-terrorism laws conflict with free speech principles, the war on terrorism is victorious. . . . In a 6-3 ruling (PDF), the U.S. Supreme Court has upheld a federal law banning material support for designated terrorist groups, even when the support is for legal activities, the Associated Press and the New York Times report. . . . The law had been challenged by aid groups who taught Kurds in southeastern Turkey how to bring human rights complaints to the United Nations and helped them in peace negotiations. The plaintiffs had claimed the material support ban was too vague, in violation of the Fifth Amendment, and infringed their rights to free speech and association, in violation of the First Amendment.

9th Circuit Has a Bad Day in the Supreme Court

By Debra Cassens Weiss, ABA Journal

06-21-10 -- The U.S. Supreme Court decided four cases today, and all of them overturned the San Francisco-based 9th U.S. Circuit Court of Appeals either wholly or in part. . . . The Forbes blog On the Docket noted the defeats. “The 9th Circuit has a reputation for forging its own path, but today had to be special,” the blog said. "I wonder if this is a record for that bastion of innovative legal thinking on the left coast."

Supreme Court Rejects Wyeth Appeal in Hormone Replacement Case

The Associated Press, Law.com

06-21-10 -- The U.S. Supreme Court is allowing a new trial in the case of a woman who got breast cancer after taking hormone replacement therapy and is seeking punitive damages against Wyeth Pharmaceuticals. . . . The justices today rejected Wyeth's attempt to block the trial because it is to be limited to punitive damages. Wyeth also wanted the high court to throw out $2.75 million compensatory damages that the woman, Donna Scroggin, won after suing Wyeth and Upjohn Co., another drugmaker. Both companies now are owned by Pfizer Inc. . . . A jury also awarded Scroggin $27 million in punitive damages after concluding that Wyeth inadequately warned her that its drugs Premarin and Prempro carried an increased risk of breast cancer.

Supreme Court Says Arbitrator Must Resolve Claim that Employment Agreement Is Unconscionable

By Debra Cassens Weiss, ABA Journal

06-21-10 -- The U.S. Supreme Court has ruled that an employee who claims his entire arbitration agreement with his company is unconscionable must have that dispute resolved by the arbitrator. . . . The 5-4 opinion (PDF) holds that the Federal Arbitration Act requires the claim of Rent-a-Center employee Roberto Jackson to be heard by an arbitrator. . . . SCOTUSblog quickly summed up the opinion this way in its live blog of opinions: “S. Ct. hearts arbitration.” The Pacific Legal Foundation’s Liberty Blog described the holding this way: “The U.S. Supreme Court today held that a contract in which two parties agree to arbitrate their disputes must be enforced, despite the sometimes clever attempts by lower court judges (especially in California) to undermine these agreements.”

Supreme Court Allows Search of Employee's City-Owned Pager

Tony Mauro, The National Law Journal

06-18-10 -- In its first ruling on the privacy of workplace texting, the U.S. Supreme Court on Thursday said that a city audit of an employee's messages on a city-owned pager was a reasonable search under the Fourth Amendment. . . . The unanimous ruling in City of Ontario, California v. Quon (pdf) sidestepped whether police Sergeant Jeff Quon, the employee in the case, had a reasonable expectation of privacy in his text messages, some of which turned out to be private and sexually explicit. . . . But Justice Anthony Kennedy, writing for a unanimous Court, said the city's search -- aimed at determining whether city employees in general needed a higher number of minutes on their pagers -- was reasonable under any view of the Fourth Amendment right to protection from unreasonable searches. . . . Even though the case involved a public workplace where the Fourth Amendment would be in full force, employment lawyers on Thursday said the ruling underscores the need for policies on privacy in private work settings as well.

High Court Finds Hundreds of Labor Cases Were Improperly Decided

Marcia Coyle, The National Law Journal

06-18-10 -- The vacancy-plagued National Labor Relations Board did not have authority to issue nearly 600 decisions in the last two years with only two board members, the U.S. Supreme Court ruled on Thursday. . . . In New Process Steel v. National Labor Relations Board, a 5-4 Court upended the NLRB's attempt, dating back to 2007, to continue functioning when it foresaw that its membership was in imminent danger of dropping from four to two. . . . The immediate effect of the Court's decision will be to return to the board an estimated 75 to 80 cases pending in the lower courts that are challenging the legitimacy of two-member board decisions. Another 500 or so cases involve appeals not raising the two-member board issue; cases where the parties already have complied with a board decision; and cases where the parties are in the process of complying and did not appeal. . . . All of those decisions are void, but whether the aggrieved parties petition the board or the courts of appeals to review their cases as a result of the Supreme Court decision, may depend on the facts of those cases, according to labor and management attorneys.

Stevens' Recusal Makes Difference in Fla. Property Ruling

Tony Mauro, The National Law Journal

06-18-10 -- In its ruling Thursday in Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Supreme Court was badly divided, producing no majority opinion and leaving the breadth of its impact unclear. Four justices said a judicial decision that extinguishes property rights can be viewed as a taking under the Takings Clause, but four other justices said that issue did not need to be resolved in this case. In either case, the Court was unanimous in upholding a Florida Supreme Court decision about oceanfront property lines that a group of affected property owners had challenged. . . . What about the ninth vote? That was missing, because Justice John Paul Stevens had recused abruptly in the case at the oral argument stage. And though it's hard to say for sure how the case would have turned out if Stevens had stayed in the case, there probably would have been a majority for some proposition -- making it clear yet again that the recusal of a single justice can make a big difference in a case.

Supreme Court Delivers Rare Victory to Death Penalty Defendants

Tony Mauro, The National Law Journal

06-15-10 -- The U.S. Supreme Court on Monday sympathized with a Florida death row inmate whose lawyer missed a deadline for his habeas appeal and failed to communicate with him for years despite numerous written pleas for help. . . . By a 7-2 vote in Holland v. Florida, the Court said that the lawyer's misconduct may entitle convicted murderer Albert Holland to "equitable tolling," or a delay in what otherwise would have been a one-year statute of limitation for filing the appeal under the Antiterrorism and Effective Death Penalty Act of 1996. . . . The lawyer's failures, wrote Justice Stephen Breyer for the majority, "seriously prejudiced a client who thereby lost what was likely his single opportunity for habeas review."

High Court Lets Government Take Fee Awards for Clients' Debts

Marcia Coyle, The National Law Journal

06-15-10 -- Attorney fee awards under a major federal fee-shifting statute are paid to the client, not to the attorney, and can be offset to pay a client's debt to the federal government, a unanimous U.S. Supreme Court ruled on Monday. . . . The Court's decision in Astrue v. Ratliff (pdf) will affect primarily lawyers and law clinics who successfully represent clients seeking Social Security or veterans benefits and who earn fee awards under the Equal Access to Justice Act. . . . In recent years, more than 12,000 civil actions have been filed annually to challenge administrative denials of Social Security claims alone, representing 5 percent of all civil claims filed in federal court, according to an amicus brief filed by the National Organization of Social Security Claimants' Representatives, AARP, National Senior Citizens Law Center and other organizations. They also note that "over half of fee awards under the EAJA are in Social Security cases."

Another 'Bilski'-Free Day at the Supreme Court

Tony Mauro, The National Law Journal

06-14-10 -- The Supreme Court is approaching the home stretch in its dash to end the current term, and it's a period when the big pending decisions start to emerge. But not this morning. . . . None of the marquee cases that would make big headlines were handed down, so we'll have to wait for Thursday, when the Court will sit again, for the likes of Bilski v. Kappos (on business method patents), McDonald v. Chicago (on the Second Amendment and local firearm regulation), Christian Legal Society v. Martinez (on First Amendment rights for religious clubs at state universities) or the trio of "honest services" fraud cases of keen interest to white collar crime law aficionados. . . . But the Court did issue four decisions in argued cases, and granted review in several new cases for argument in the fall -- including, notably, Schwarzenegger v. Plata, on California's challenge to a court order that it reduce its prison population to address deficiencies in prison health care.

High Court Rejects Appeal in Rendition Case

The Associated Press, Law.com

06-14-10 -- The Supreme Court has rejected an appeal from a Canadian engineer who was caught up in the U.S. government's secret transfer of terror suspects to other countries. . . . The Court did not comment today in ending Syrian-born Maher Arar's quest to sue top U.S. officials, including former Attorney General John Ashcroft. Arar says he was mistaken for a terrorist when he was changing planes in New York on his way home to Canada, a year after the 2001 terrorist attacks. He was instead sent to Syria, where he claims he was tortured. . . . Lower courts dismissed Arar's lawsuit which asserts the U.S. purposely sent him to Syria to be tortured. Syria has denied he was tortured.

Supreme Court Rules for Persistent Death-Row Inmate Whose Lawyer Blew Habeas Deadline

By Debra Cassens Weiss, ABA Journal

06-14-10 -- The U.S. Supreme Court is giving a Florida death row inmate a chance to challenge his conviction, despite his lawyer’s failure to file a habeas appeal within the one-year deadline. . . . The U.S. Supreme Court ruled 7-2 that the statute of limitations governing federal habeas appeals may be tolled for equitable reasons in extraordinary circumstances. The case of inmate Albert Holland may qualify, the court said, and remanded for further proceedings. . . . Holland had correctly informed his court-appointed lawyer, Bradley Collins, that he was wrong about the time period for filing a federal habeas appeal, Justice Stephen G. Breyer wrote in the majority opinion (PDF). Before that, Holland had complained repeatedly to the courts asking for new counsel and had written several letters to Collins seeking updates on his case. The Florida Supreme Court denied Holland’s pro se requests for a new lawyer on the ground they should have been made through his counsel. . . . Breyer’s opinion included the text of several of Holland’s polite letters. “Dear Mr. Collins,” the letters began, “How are you? Fine, I hope.” A letter to the clerk of the Florida Supreme Court offered, "I’m not trying to get on your nerves. I just would like to know exactly what is happening with my case on appeal to the Supreme Court of Florida.” After Holland learned on his own—in the prison library—that the Florida Supreme Court had ruled against him, and a habeas appeal had not been filed by the deadline, he filed his own pro se petition and complained to the Florida Bar. Holland finally got a new lawyer.

Supreme Court Upholds Late Restitution Order

By Annie Youderian, Courthouse News Service

06-14-10 -- A judge can order restitution more than 90 days after sentencing if the only issue left open is the amount, the Supreme Court ruled Monday in a 5-4 decision. . . . The ruling in the case of Brian Dolan marks the first time since 1990 that the high court has interpreted federal restitution law. . . . Dolan beat up a hitchhiker and left him on the side of the road, bleeding, unconscious and with several broken bones. The victim racked up more than $100,000 in medical expenses. . . . Dolan was sentenced to one year and nine months in prison, with the amount of restitution left open until the court received more information. . . . Under the Mandatory Victims Restitution Act, courts have 90 days from sentencing to order restitution. . . . But nearly six months after the 90-day deadline, the sentencing judge ordered Dolan to pay $104,650 in restitution. . . . Dolan's lawyer urged the high court to overturn the restitution order, but the majority ruled that the sentencing court had the power to order restitution after the deadline, so long as it "made clear" its intention to do so.

Arbitration Showdown Looms Between Congress, Supreme Court

Congress, high court take opposing views of mandatory agreements

Marcia Coyle, The National Law Journal

06-14-10 -- Congress and the U.S. Supreme Court appear headed for collision over mandatory arbitration in consumer and employment contracts. . . . Two actions over the last month moved the branches closer to impact: The justices agreed to decide next term whether a class action ban in a cell phone arbitration agreement is unconscionable -- one of the hottest issues in arbitration. And major financial reform legislation, which would give government agencies the power to ban or limit mandatory arbitration agreements, moved into a House-Senate conference committee. . . . The Court has taken a steady stream of arbitration challenges in the past decade or so. Although the justices have divided narrowly on some issues, their decisions have generally been pro-arbitration, according to litigators and scholars. That trend is in contrast to the increasing skepticism shown by lower courts and lawmakers about arbitration's claim to greater efficiency and less cost than court litigation.

Justices Approve Bureau of Prisons' Calculations for 'Good Time Credit'

Tony Mauro, The National Law Journal

06-08-10 -- In a decision that affects the prison terms of nearly 200,000 inmates in federal prisons, the U.S. Supreme Court on Monday adopted a formula for calculating "good time credit" for good behavior that results in more time served. . . . The Court by a 6-3 vote endorsed a long-standing Bureau of Prisons method of calculating good time credit based on the length of time actually served, not the length of the term imposed by the sentencing judge. As Justice Stephen Breyer described it in his majority opinion in the case, Barber v. Thomas, the formula preferred by the Court would result in 470 days of credit for a well-behaved prisoner serving a 10-year sentence, while the method urged by defendants would result in 540 days of credit.

Justices Rule on Bankruptcy, Procedure, Prisons, but Not Hillary Clinton

Marcia Coyle, The National Law Journal

06-08-10 -- The U.S. Supreme Court on Monday inched toward the end of the term with three decisions in the areas of bankruptcy, procedure and prison law. . . . A collective sigh of disappointment undoubtedly echoed throughout the patent bar as another decision day came and went without a ruling in the term's major patent case: Bilski v. Kappos, argued last November. Bilski and a bankruptcy case from that month, Schwab v. Reilly, are the oldest cases pending decision. . . . Although none of three rulings issued Monday is likely to make front page news, they answer questions of practical significance to litigators.

Supreme Court Refuses to Hear Lawsuit Involving Clinton’s Eligibility to Be Secretary of State

The case Rodearmel v. Clinton, 09-797.
By Staff, Associated Press, CNSNews.com

06-07-10 -- The Supreme Court said Monday it won't hear arguments that Hillary Rodham Clinton is ineligible to be secretary of state because of an obscure rule about pay increases. . . . The high court on Monday refused to hear an appeal by Judicial Watch, a conservative watchdog group, without ruling on the underlying issue. . . . Judicial Watch's lawsuit had been thrown out by the lower courts without a "final judgment, decree or order upon the validity of the appointment and continuance in office of the Secretary of State," the high court said. "... The appeal is therefore dismissed for want of jurisdiction." . . . The suit is based on a largely overlooked section of the Constitution on compensation for public officials, the emoluments clause. The clause says no member of Congress can be appointed to a government post if that job's pay was increased during the lawmaker's current term.

Supreme Court Allows Do-Over for Lawyer Who Sued Wrong Party

By Debra Cassens Weiss, ABA Journal

06-07-10 -- A lawyer for a plaintiff who slipped and fell on a cruise ship will be allowed to amend the pleadings to name the proper defendant since the cruise line operator should have been aware of the misunderstanding, the U.S. Supreme Court has ruled. . . . Justice Sonia Sotomayor wrote the unanimous opinion (PDF) in Krupski v. Costa Crociere. The proper inquiry, she said, was whether the proper defendant knew or should have known it was the intended party, but for the plaintiff’s mistake. . . . The lawyer for plaintiff Wandi Krupski had sued Costa Cruise Lines, the sales and marketing agent, instead of Costa Crociere, the vessel operator and the proper party. Both companies were represented by the same counsel.

High Court Turns Down Death Row Appeal in
Rogue Juror Case

The Associated Press, Law.com

06-02-10 -- The Supreme Court on Tuesday rejected an appeal from a federal death row inmate who said his death sentence should have been thrown out because of a juror's misconduct. . . . The justices did not comment in turning down Brandon Basham, who was sentenced to death for kidnapping and killing 44-year-old Alice Donovan in 2002. The forewoman on Basham's jury was held in contempt of court by the trial judge after it was learned that she called five news organizations and made 71 other calls to two fellow jurors, despite repeated warnings from the judge to refrain from discussing the case with anyone.

Supreme Court:
Suspects must invoke right to remain silent in interrogations

By Robert Barnes, Washington Post Staff Writer

06-01-10 -- The Supreme Court ruled Tuesday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning "upside down." . . . The court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting after nearly three hours of questioning thus gave up his right to silence, and the statement could be used against him at trial. . . . "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent," Justice Anthony M. Kennedy wrote for the court's conservatives. . . . In a separate case, the justices unanimously agreed that a former prime minister of Somalia who now lives in Fairfax County may be sued in U.S. courts by fellow countrymen who claim he oversaw killings and torture in their former home. Mohamed Ali Samantar was part of the country's ruling government in the 1980s and early 1990s.

May 2010

High Court: Justices to consider 'funeral protests' in free-speech case

By Robert Barnes, Washington Post Staff Writer

05-31-10 -- Albert Snyder, an industrial equipment salesman from York, Pa., says he was once a quiet guy who had no taste for the limelight. Now he has a Web site and interviews scheduled back to back. The most important person in the Senate is rallying support for him, and 48 states and the District of Columbia have come to his aid. . . . Snyder and his late son, Marine Lance Cpl. Matthew Snyder, killed in Iraq, have become the public faces of more than 200 families that have seen funerals of loved ones picketed by members of a tiny church who say the deaths of U.S. soldiers are God's retribution for the nation's tolerance of homosexuality. . . . The collision of privacy rights and the Constitution's protection of free speech will be heard by the Supreme Court in the fall. Snyder's lawyer, Sean Summers, recently filed his brief to the court, and the fortuitous deadline for others to support Snyder is the day after Memorial Day.

SG Revises Data on Federal Juvenile Sentences in Letter to High Court

Tony Mauro, The National Law Journal

05-28-10 -- In an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG's knowledge, was inaccurate. The letter casts a new light on the federal government's non-involvement in the case, which has been the subject of some controversy. . . . In the landmark decision May 17, the high court ruled that the Eighth Amendment bars the sentencing of juveniles to life in prison without the possibility of parole for non-homicide crimes. . . . The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that "there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes." In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.

Domestic Violence Victims Take a Win by Supreme Court Default

Marcia Coyle, The National Law Journal

05-27-10 -- Advocates for domestic violence victims and those seeking child custody and support are breathing easier this week because the U.S. Supreme Court dismissed a case that could have limited the enforcement of court orders in those areas. . . . Because the lower court's order stands in Robertson v. United States ex rel. Watson, Robert Long, a partner at Washington's Covington & Burling, puts this one in the win column. Long argued for Wykenna Watson pro bono. . . . What is important, Long said, is that private enforcement for criminal contempt -- by victims of domestic violence or by parties to child custody disputes -- remains a viable tool. . . . Meanwhile, Blair Brown, a partner in Washington's Zuckerman Spaeder who filed an amicus brief supporting John Robertson in the case, warned that the Supreme Court's lack of action undermines defendants' ability to rely on plea agreements.

Supreme Court Upsets 2nd Circuit 'Plain Error' Ruling

Mark Hamblett, New York Law Journal

05-25-10 -- A man whose conviction for sex trafficking and forced labor was overturned by the 2nd U.S. Court of Appeals did not win as favorable a result before the U.S. Supreme Court. . . . The 2nd Circuit found in 2008 that the mere possibility that a jury attributed conduct to defendant Glenn Marcus that occurred before the enactment of the Trafficking Victims Protections Act of 2000 meant a violation of the Constitution's ex post facto clause, and it ordered a new trial for Marcus. . . . On Monday, however, the U.S. Supreme Court ruled the 2nd Circuit's approach "cannot be reconciled" with Supreme Court case law on ordering reversal under the "plain error standard," in United States v. Marcus (pdf), No. 08-1341. . . . The Court reversed by a vote of 7-1 and instructed the circuit court to revisit the case and apply the correct standard.

High Court Smooths Path to Plaintiff Fees in Disability Cases

Marcia Coyle, The National Law Journal

05-25-10 -- Workers suing over disability and other benefits under the federal law known as ERISA may win attorney fees and costs if they achieve "some degree of success on the merits," a unanimous U.S. Supreme Court ruled on Monday. In Hardt v. Reliance Standard Life Insurance Co. (pdf), the justices rejected a tougher standard imposed by the 4th U.S. Circuit Court of Appeals (pdf) on fee claimants under the Employee Retirement and Income Security Act. The lower appellate court had ruled that a claimant must be a "prevailing party" before seeking a fee award. . . . The justices' ruling came in a case brought by Bridget Hardt, who sought long-term disability benefits as a result of job-related carpal tunnel syndrome. Hardt was awarded the benefits, but in March 2006, Reliance informed her that she was ineligible for continued long-term benefits. She sued the insurance company, claiming ERISA violations.

Supreme Court Says Bias Case Over Firefighter Hiring Can Move Forward

Marcia Coyle, The National Law Journal

05-25-10 -- A class of 6,000 African-Americans who sued the city of Chicago for race bias in its hiring of firefighters did not bring untimely discrimination charges, the U.S. Supreme Court held on Monday. . . . In Lewis v. City of Chicago, the justices unanimously held that when an employer institutes a practice having an illegal discriminatory -- disparate -- impact, it may be challenged each time the employer uses it. . . . "Today, the Supreme Court affirmed that job-seekers should not be denied justice based on a technicality," said John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund, in a statement. Payton, who argued the case, added, "This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test." . . . The Court's decision reverses a ruling by the 7th U.S. Circuit Court of Appeals that held the claims were time-barred.

High Court Broadsides NFL in Antitrust Case

The National Football League 'snatched defeat from the jaws of victory,' according to one antitrust expert

Tony Mauro, The National Law Journal

05-25-10 -- The U.S. Supreme Court on Monday dashed the hopes of the National Football League for baseball-style immunity from antitrust laws, with justices ruling unanimously against the league in a dispute over NFL-licensed apparel. . . . The NFL defended its exclusive contract with Reebok for souvenir headwear for all the league's teams by arguing that it should be viewed as a single entity for certain purposes. . . . But Justice John Paul Stevens, writing for the Court, said the NFL's contract amounted to "concerted action" by separate entities that warranted scrutiny under Section 1 of the Sherman antitrust law. The ruling came in the case American Needle Inc. v. National Football League (pdf).

Supreme Court to Review Texas Death Row Case

Michael Graczyk, The Associated Press, Law.com

05-25-10 -- The U.S. Supreme Court agreed Monday to decide whether a Texas death row inmate should have access to evidence for DNA testing he says could clear him of three murders. . . . The justices said they will use the case of Hank Skinner, who was as little as an hour away from being executed earlier this year, to decide whether prisoners may use a federal civil rights law to get DNA testing that was not performed before their conviction. . . . Federal appeals courts around the country have decided the issue differently. . . . Skinner's lawyer, Rob Owen, said having the case accepted was "the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought. . . . "We look forward to the opportunity to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit." . . . Mark D. White, the lawyer for Gray County District Attorney Lynn Switzer, the defendant in Skinner's lawsuit, said he saw the high court review as a chance for the justices to affirm that once a prisoner had adequate chances to challenge his conviction, "other post-conviction proceedings are better left to the states to handle." . . . Skinner has lost state appeals that sought the new DNA tests. At the time of his trial, his original lawyer chose not to have the additional tests because he feared the results could further incriminate Skinner.

U.S. Supreme Court won't hear jailed L.A. lawyer's contempt of court case

Richard Fine, 70, has been in solitary confinement since March 2009, taking his case all the way to the top court. He says he will continue to fight.

By Victoria Kim, Los Angeles Times

05-25-10 -- After a Los Angeles County Superior Court judge sent him to jail indefinitely for contempt of court last year, veteran attorney Richard Fine vowed to take his case all the way to the nation's highest court. . . . "To fight me is to fight me all the way to the Supreme Court," he said in a jailhouse interview with The Times last May. . . . On Monday, the U.S. Supreme Court declined to take up Fine's petition, effectively putting an end to the attorney's dogged legal quest to end his confinement. . . . The 70-year-old antitrust and taxpayer advocate attorney has been sitting in solitary confinement in Men's Central Jail for about a year and three months after Judge David Yaffe found him in contempt in March 2009. The judge ordered him to stay in jail until he is ready to follow court orders and answer questions about his finances. . . . From his cell, Fine has filed habeas corpus petitions for his release in the California Supreme Court, district court, and the U.S. 9th Circuit Court of Appeals alleging that Yaffe was biased against him and should have recused himself from the contempt-of-court case. Fine contends that his legal troubles stem from his challenges to county-funded benefits that judges receive on top of their state pay.

Supreme Court Allows Black Firefighters to Sue Chicago for Test’s Disparate Impact

By Debra Cassens Weiss, ABA Journal

05-24-10 -- The U.S. Supreme Court is allowing a group of firefighters to sue the city of Chicago over alleged discrimination in an employment test. . . . The unanimous opinion (PDF) by Justice Antonin Scalia said the firefighters were not barred from suit, despite a claim that they had waited too long to challenge the test, according to SCOTUSblog and the Associated Press. . . . A lawyer for the class of 6,000 African Americans challenging the use of the test results has said damages in the case could reach $100 million, the Los Angeles Times reports. The story says the decision is "the latest twist in a long-running set of lawsuits over the use of civil-service exams for hiring police and firefighters."

High Court Rules Against NFL in Antitrust Case

Tony Mauro, The National Law Journal

05-24-10 -- It was a rare win for plantiffs in an antitrust case this morning as the Supreme Court ruled unanimously against the National Football League in its bid to be viewed as a single enterprise immune from antitrust scrutiny. The ruling came in the case American Needle Inc. v. National Football League (pdf). . . . Retiring Justice John Paul Stevens, who began his career as an antitrust lawyer in Chicago, authored the decision. American Needle, one of several suppliers of NFL apparel, brought the challenge in U.S. District Court for the Northern District of Illinois under the Sherman Act after the NFL granted an exclusive contract to Reebok for licensed headwear. The trial court granted summary judgment to the NFL, and the 7th U.S. Circuit Court of Appeals affirmed, noting that football can only be played jointly and that for some purposes it can be viewed as a single entity.

Supreme Court to Hear Case of Death Row Inmate Seeking DNA Test

By Debra Cassens Weiss, ABA Journal

05-24-10 -- The U.S. Supreme Court has agreed to decide whether a Texas death row inmate has the right to DNA tests that his lawyer rejected because he feared they would be incriminating. . . . The Supreme Court agreed today to hear the appeal by inmate Hank Skinner, convicted of murdering his girlfriend and two sons in 1993, according to SCOTUSblog and the Associated Press. At issue is whether Skinner can seek DNA tests under federal civil rights law—his only remaining chance to obtain the evidence—rather than a habeas challenge.

Supreme Court Denies Case on Legal Work Papers

Tony Mauro, The National Law Journal

05-24-10 -- The Supreme Court this morning denied review in the case of Textron v. United States, a closely watched case testing the privacy of legal work papers. Without comment, the Court denied review, leaving in place a lower court decision that challengers said would threaten the relationship and candor between lawyers and clients. . . . In the Textron case, the 1st U.S. Circuit Court of Appeals ruled that tax accrual work papers, prepared by lawyers for auditors and others, were not protected by the work product privilege and should be turned over to the IRS. The tax agency sought the papers as part of a tax shelter investigation. Textron, represented by Williams & Connolly partner Kannon Shanmugam, filed a petition seeking review of the 1st Circuit decision in January.

International Abduction Treaty Trumps Parental Rights,
Says U.S. Supreme Court

Marcia Coyle, The National Law Journal

05-18-10 -- An order prohibiting the removal of a child from a country without the noncustodial parent's consent is enforceable under an international child abduction treaty, the U.S. Supreme Court ruled on Monday. . . . In Abbott v. Abbott, a dispute between the American mother and British father of a 15-year-old boy that has been closely watched by family and international law practitioners, the justices, voting 6-3, resolved a split among the federal circuits over the meaning of so-called ne exeat clauses in child custody orders. . . . Justice Anthony Kennedy, writing for the majority, said the ne exeat clause in a Chilean court order conferred a "right of custody" on the noncustodial British father within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. . . . And because the clause conferred a right of custody, wrote Kennedy, the father may seek the treaty's remedy -- a petition to return the child, in this case to Chile. . . . "A return remedy does not alter the pre-abduction allocation of custodial rights but leaves custodial decisions to the courts of the country of habitual residence," he explained.

Justices Rule on Prison Time for Juveniles, Sex Offenders

Tony Mauro and Marcia Coyle, The National Law Journal

05-18-10 -- In a pair of major criminal law decisions on Monday, the U.S. Supreme Court ruled that the Eighth Amendment does not allow sentences of life in prison without parole for juveniles who committed nonhomicide crimes and upheld a federal law permitting sexually dangerous inmates to be confined beyond their prison terms. In the juvenile case, Graham v. Florida (pdf), the Court said, "A state need not guarantee the offender eventual release, but if it imposes the sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term." . . . Justice Anthony Kennedy, writing for the 6-3 majority, applied the logic of the categorical exceptions to the death penalty for juveniles and the mentally retarded, already created by the Court, to juveniles who commit lesser crimes than homicide. Their age and level of mental development make them less culpable, Kennedy wrote, adding that life without parole "deprives the convict of the most basic liberties without giving hope of restoration." Kennedy also wrote, "Life without parole is an especially harsh punishment for a juvenile. ... A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only." . . . Law enforcement advocates warned that the ruling will open the door to more and more leniency for a wider range of defendants and crimes. The next challenge may be raised against life without parole for juveniles convicted of homicide or against lengthy sentences such as 70 years, said Winston & Strawn partner Gene Schaerr, who wrote a brief in the case for the National District Attorneys Association. "This sets up a slippery slope situation, and there will be a good deal of litigation," said Schaerr.

Justices Issue Major Eighth Amendment Ruling on Juvenile Sentencing

Nominee Elena Kagan wins another case she argued before the Court

Tony Mauro, The National Law Journal

05-17-10 -- It was a newsy morning at the Supreme Court today, with four rulings, including a victory for the United States in a case argued by Solicitor General Elena Kagan. The Court also issued a landmark ruling on life sentences without parole for juveniles in non-homicide crimes. The Court did not rule in the long-awaited Bilski v. Kappos case on the patent eligibility of business method inventions. The Court sits next for releasing opinions on May 24. . . . In the juvenile sentencing case, Graham v. Florida (pdf), Justice Anthony Kennedy wrote for a 6-3 majority that such a sentence categorically violates the Eighth Amendment bar against cruel and unusual punishments. Chief Justice John Roberts Jr. joined the bottom-line judgment only, arguing that the sentence in the case should be struck down, but not based on a categorical rule. Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. dissented. . . . In Sullivan v. Florida (pdf), argued separately from the Graham case but raising a similar issue, the Court dismissed the case as improvidently granted.

Court reinforces int'l parents' rights

UPI

05-17-10 -- The U.S. Supreme Court ruled 6-3 Monday that international law gives one parent the right to object when another parent removes a child from a country. . . . The case involves a U.S. couple who moved to Chile, where the courts granted daily custody of a minor son to the mother and visitation rights to the father. When the mother took the child to Texas without the father's consent, the father filed suit in Texas under international law. . . . A Texas judge ruled for the mother, saying the father did not have the legal right to block the mother from taking the child out of the country under the Hague Convention. . . . The Supreme Court reversed.

Parties Urge Supreme Court Not to Dismiss NLRB Quorum Case

Marcia Coyle, The National Law Journal

05-06-10 -- In the U.S. Supreme Court clash over the authority of a two-member National Labor Relations Board to issue decisions, the parties -- the government and New Process Steel -- now agree on something: The case is not moot because of the recess appointments of two additional board members. . . . The justices on April 16 asked the parties for new briefs on what effect the March 27 appointments of Craig Becker and Mark Pearce might have on the case, New Process Steel v. National Labor Relations Board. The case was argued on March 23. . . . Last week, the government in its letter to the Court said the recess appointments do not affect the nearly 600 other cases decided by the two-member board between Jan. 1, 2008, and March 26, 2010. Also not affected, noted the government, are an additional 76 cases pending in or decided within the last 90 days by the courts of appeals in which litigants have challenged (or a court has sua sponte raised) the validity of the board's decision because it was entered by the two-member quorum.

High Court Asks Obama Administration for Views on Felon Voting Bans

Tony Mauro, The National Law Journal

05-04-10 -- After years of expressing little interest, the U.S. Supreme Court on Monday asked the Obama administration to weigh in on whether laws that bar felons from voting violated the federal Voting Rights Act. . . . The request came in the case of Simmons v. Galvin, in which the 1st U.S. Circuit Court of Appeals upheld Massachusetts Article 120, an amendment to the state constitution in 2000 that barred felons from voting while in prison. Massachusetts is one of 13 states with similar prohibitions, while 35 other states extend the ban to the period of parole or probation or beyond. Only Maine and Vermont allow felons to vote without restriction during and after their imprisonment. . . . Civil rights groups have attacked the laws as a deprivation of the vote under the 45-year-old federal Voting Rights Act. "The struggle to free the vote is the next stage of the voting rights movement," said Ryan Haygood, lawyer with the NAACP Legal Defense and Educational Fund

Supreme Court Rules Against Family of Immigrant Suing for Delayed Cancer Treatment

By Debra Cassens Weiss, ABA Journal

05-03-10 -- The U.S. Supreme Court has held federal medical officials are shielded from personal liability for failing to diagnose the penile cancer of a Salvadoran immigrant who died after being released from custody. . . . Justice Sonia Sotomayor wrote the unanimous opinion (PDF), the Associated Press reports. The officials are exempted from personal liability because of protections under the Federal Tort Claims Act, the opinion said. The law makes suits against the United States the exclusive remedy. . . . The immigrant who died, Francisco Castenda, was detained by immigration officials and spent time in the San Diego Correctional Facility.

April 2010

Divided High Court Lets Mojave Cross Memorial Stand

Tony Mauro, The National Law Journal

04-29-10 -- In a fractured church-state opinion with no majority consensus, the U.S. Supreme Court on Wednesday ruled in favor of a federal law that preserved a Christian cross memorial to World War I veterans amid federal land in California's Mojave Desert. . . . "Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message," Justice Anthony Kennedy wrote in the lead opinion in Salazar v. Buono (pdf). "Rather, those who erected the cross intended simply to honor our nation's fallen soldiers." . . . The high court opinion, which included writings by six of the nine justices, sent the long-running litigation back to Judge Robert Timlin of the U.S. District Court for the Central District of California with instructions to give greater weight to the 2004 law that was aimed at ending litigation over the cross, first planted in the ground in 1934. The statute called for selling the land immediately surrounding the cross to the Veterans of Foreign Wars so that it would no longer be on federal property.

Petition-Signer Privacy Arguments Meet With Skepticism at Supreme Court

Marcia Coyle, The National Law Journal

04-29-10 -- A major First Amendment challenge to public disclosure of the names of people signing referendum petitions appeared in trouble during arguments Wednesday in the U.S. Supreme Court. . . . The case, Doe v. Reed, stems from a 2009 referendum on a Washington state law that expanded the rights of registered domestic partners. Referendum 71 resulted from a petition drive by Protect Marriage Washington and other groups seeking to repeal the law. It was unsuccessful. . . . After the petitions were submitted to the state for verification, several supporters of the law sought the names and addresses of the signers; one organization indicated it would put the names on the Internet. But the law's opponents moved to bar release of the information, which was available under Washington's Public Records Act. They claimed identification of the petition signers violated the signers' First Amendment right to privacy in political speech and association. The district court issued a preliminary injunction, but the 9th U.S. Circuit Court of Appeals reversed.

Supreme Court Rules Against Offended Park Ranger in Mojave Cross Case

By Debra Cassens Weiss, ABA Journal

04-28-10 -- In a fractured decision, the U.S. Supreme Court has overturned an injunction that prevented the government from transferring parkland containing a cross to the Veterans of Foreign Wars. . . . . The court found park service employee Frank Buono had standing to sue, but said a federal court was wrong to bar transfer of the land now in the Mojave National Preserve. Buono had asserted he was offended by the cross and had contended the land deal was aimed at bypassing the establishment clause. . . . . Justice Anthony M. Kennedy wrote the plurality decision, saying the district court did not examine the relevant issues before issuing an injunction. He said the district court should conduct a "proper inquiry" on remand. Two of the five justices who agreed the lower court erred, however, based their decision on another reason: Their view was that Buono had no standing to sue. . . . There were four dissenters who would have supported the injunction, the Associated Press reports. SCOTUSblog had an early summary of the holding. . . . Kennedy said the district court that issued the injunction did not acknowledge the significance of the cross. It was erected to honor servicemen who died in World War I, rather than to promote a Christian message, he said in a portion of the plurality opinion (PDF) that was joined by two concurring justices.

Justices Give Boost to Securities Fraud Plaintiffs in Merck Ruling

Tony Mauro, The National Law Journal

04-28-10 -- In a rare boost for securities fraud class actions, the U.S. Supreme Court on Tuesday closed off a "statute of limitations" defense for Merck & Co. in its battle against Vioxx-related shareholder suits. . . . The Court unanimously ruled in Merck v. Reynolds (pdf) that the litigation is timely and must go forward, in spite of Merck's insistence that the suit was filed too late under the two-year statute of limitations contained in the Sarbanes-Oxley Act of 2002. . . . Justice Stephen Breyer, writing for the Court, took an expansive view of the two-year statute, finding that the clock should start ticking only after plaintiffs discovered the facts of the fraud violation -- including whether the company intended to defraud investors.

High Court Ruling May Fuel Battle Over Class Arbitration

Marcia Coyle, The National Law Journal

04-28-10 -- The U.S. Supreme Court likely ignited an intense battle in state and federal courts with its decision Tuesday that class arbitration may not be imposed on parties who have not agreed to it. . . . "The sword of Damocles is hanging over class arbitration now," said F. Paul Bland of Public Justice, a Washington-based public interest law firm. "I think you are about to see a huge battle begin for what the implications of the case are. Consumer and employee advocates are going to take a view very, very different from what you're going to see from the defense bar." . . . Bland predicted that "within a week" defendants in more than 100 class action arbitration cases will seek supplemental briefing to argue that all state laws that have been used to strike down bans on class arbitrations are now pre-empted by the high court's ruling in Stolt-Nielsen S.A. v. AnimalFeeds International Corp.

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Supreme Court Justices Consider Courts' Role in Arbitration

Tony Mauro, The National Law Journal

04-27-10 -- The U.S. Supreme Court's pro-arbitration trend appears intact after oral arguments Monday in a key case asking whether it should be courts or arbitrators themselves who rule on the enforceability of an arbitration agreement. . . . Consumer groups say the outcome of the case, Rent-A-Center, West v. Jackson, could determine whether courts have any role in overseeing arbitration clauses in labor agreements, which they see as biased toward employers. Business groups, for their part, don't want courts second-guessing what they see as validly agreed-upon arbitration agreements. . . . "If companies win, this really will be a watershed case," said Deepak Gupta, an attorney for Public Citizen, which asserts that arbitrators rule against consumers 94 percent of the time.

Supreme Court Says Vioxx Lawsuit Can Proceed

Jesse J. Holland, The Associated Press, Law.com

04-27-10 -- The U.S. Supreme Court said Tuesday investors who lost huge amounts betting on the blockbuster drug Vioxx can sue Merck & Co. over whether the pharmaceutical giant provided enough information about the painkiller's risks before it was pulled from the market. . . . The high court agreed with a federal appeals court's decision to allow a class-action securities lawsuit. The suit was over whether the drugmaker provided adequate information about the drug's risks before its withdrawal. . . . The Whitehouse Station, N.J.-based company pulled the drug on Sept. 30, 2004, because it doubled the risks of heart attack, stroke and death. Investors lost tens of billions of dollars in shareholder value overnight. . . . The class-action lawsuit will now move forward in federal court.

High Court to Decide if Calif. Can Regulate Video Games

Jesse J. Holland, The Associated Press, Law.com

04-26-10 -- The U.S. Supreme Court, wading into a clash between free-speech rights and laws protecting children, agreed Monday to decide whether California can ban the sale or rental of violent video games to minors. . . . The court will review a federal court's decision to throw out California's ban. The 9th U.S. Circuit Court of Appeals in San Francisco said the law violated minors' constitutional rights under the First and Fourteenth amendments. . . . California's law would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act would have been fined up to $1,000 for each violation. . . . The law never took effect, and was challenged shortly after it was signed by Gov. Arnold Schwarzenegger. A U.S. District Court blocked it after the industry sued the state, citing constitutional concerns.

Calling for Time: Why the Supreme Court Will Consider 'Costco v. Omega'

Joe Mullin, Corporate Counsel

04-26-10 -- At first blush, Costco Wholesale Corp v. Omega, S.A., which the U.S. Supreme Court earlier this month agreed to hear, doesn't involve the kind of cutting-edge issues that copyright lawyers usually grapple with in the digital age. So why is the Court willing to consider a dispute between a company that makes fancy watches and a company that imports and resells them? It sounds like the kind of lawsuit that should have been resolved 200 years ago. . . . But this lawsuit -- and many others that hinge on its outcome -- is very much a product of the Internet-driven global economy. Just ask John Mitchell, a Washington, D.C., attorney who's engaged in a fight with textbook-makers over whether his client, Ganghua Liu, has the right to resell English-language textbooks that were imported from China. In September, a New York federal court denied Mitchell's motion to dismiss the suit, brought by textbook makers John Wiley and Sons Inc. and Pearson Education, but Mitchell has appealed that decision to the 2nd U.S. Circuit Court of Appeals. A second suit that addresses what's called the "parallel importation" of textbooks is set to be argued before a 2nd Circuit panel on May 19.

High Court Strikes Down Animal Cruelty Law on First Amendment Grounds

Tony Mauro, The National Law Journal

04-21-10 -- In a strong endorsement of classic First Amendment principles, the U.S. Supreme Court on Tuesday struck down a federal law that made it a crime to create, sell or possess certain depictions of animal cruelty.

Calling the law a "criminal prohibition of alarming breadth," Chief Justice John Roberts Jr. said there was no basis for carving out such an ill-defined exception to the First Amendment. Roberts wrote for an 8-1 majority in the case, U.S. v. Stevens (pdf). . . . The 10-year-old statute was aimed at the growing market, especially on the Internet, of so-called "crush videos," showing the killing of helpless animals in ways that appeal to the prurient interests of purchasers. But the law defined its target broadly, outlawing depictions of intentional killing or maiming of animals if the conduct violated laws of jurisdictions where they were sold, created or possessed. It exempted depictions with serious religious, scientific, educational, journalistic, historical or artistic value.

Supreme Court Overturns ‘Essentially Arbitrary’
Attorney-Fee Boost of $4.5M

By Debra Cassens Weiss, ABA Journal

04-21-10 -- The U.S. Supreme Court has reversed an award of an extra $4.5 million in attorney fees for good lawyering in a case that uncovered deficiencies in Georgia's foster care system. . . . In his majority opinion (PDF), Justice Samuel A. Alito Jr. said fee enhancements are allowed in extraordinary circumstances, but the district court failed to apply established standards that determine when they are available and didn't provide sufficient details to justify its decision. . . . Children's Rights Inc. and Atlanta's Bonduran, Mixson & Elmore were awarded $10.5 million under a fee-shifting statute for their work in the case, the National Law Journal reported in a prior story. Of that amount, they received $4.5 million above the lodestar fee of $6 million, in part because of the extraordinary results achieved. The lodestar is based on the number of hours worked multiplied by the prevailing hourly rate for attorney fees. . . . The 75 percent fee enhancement “appears to have been essentially arbitrary,” Alito said. “Why, for example, did the court grant a 75 percent enhancement instead of the 100 percent increase that respondents sought? And why 75 percent rather than 50 percent or 25 percent or 10 percent?” The effect of the enhancement, he said, was to hike the hourly rate for the top attorneys to more than $866.

Supreme Court Tells Debt-Collection Law Firm that Ignorance of Law Is No Excuse

By Debra Cassens Weiss, ABA Journal

04-21-10 -- Law firms that misinform a debtor facing foreclosure about his or her legal obligations aren't shielded from liability for the legal error, the U.S. Supreme Court has ruled. . . . In a 7-2 opinion (PDF) by Justice Sonia Sotomayor, the Supreme Court said the “bona fide error defense” doesn’t protect debt collectors who make mistakes when interpreting the legal requirements of the federal Fair Debt Collection Practices Act. The law imposes civil liability for certain debt collection practices, but provides an exception—when the “the violation was not intentional and resulted from a bona fide error.” . . . The bona fide error defense does not extend to mistakes of law, Sotomayor said. "We have long recognized the ‘common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally,’ " she wrote, quoting from an 1833 opinion. . . . Sotomayor ruled against an Ohio law firm, Carlisle, McNellie, Rini, Kramer & Ulrich, accused of making a mistake when bringing foreclosure proceedings on behalf of Countrywide Home Loans Inc., the Wall Street Journal reports. . . . Carlisle McNellie had told homeowner Karen Jerman that her debt was assumed to be valid unless she disputed it in writing. Jerman had paid her debt, and she sued the law firm after the foreclosure was withdrawn. The trial court had noted a division of authority over the need for a written protest, but ruled against the law firm on the question. However, the court said the law firm was shielded under the bona fide error rule, and an appeals court affirmed.

Supreme Court voids law aimed at banning animal cruelty videos

By Robert Barnes, Washington Post Staff Writer

04-20-10 -- The Supreme Court struck down a federal law Tuesday aimed at banning videos depicting graphic violence against animals, saying that it violates the constitutional right to free speech. . . . Chief Justice John J. Roberts Jr., writing for an eight-member majority, said the law was overly broad and not allowed by the First Amendment. He rejected the government's argument that whether certain categories of speech deserve constitutional protection depends on balancing the value of the speech against its societal costs. . . . "The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits," Roberts wrote. "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."

High Court Justices Consider Privacy Issues in Text Messaging Case

Marcia Coyle, The National Law Journal

04-20-10 -- The U.S. Supreme Court on Monday wrestled with the privacy expectations of public employees in a case involving workplace monitoring of text messages. . . . By the end of arguments in City of Ontario, Calif. v. Quon, some justices, unfamiliar at first with the ins and outs of text technology, appeared better informed, but Jeffrey Quon's expectation of victory appeared to decline. . . . The city is asking the justices to overturn a ruling by the 9th U.S. Circuit Court of Appeals (pdf), holding that it violated the Fourth Amendment privacy rights of Quon, a member of the Ontario police department's SWAT team, when it reviewed transcripts of his and another officer's text messages on their department pagers. The city contends it reviewed the messages to determine whether it needed to increase the character allotment for all pagers.

Supreme Court Arguments Turn Heated in Case Over Christian Law Student Group

Tony Mauro, The National Law Journal

04-20-10 -- The U.S. Supreme Court heard oral arguments Monday in a key church-state dispute over the status of a Christian group at a state university law school. But the discussion quickly devolved into a testy debate over the factual record in the case and what it was all about. . . . "What is the case that we have here?" Justice Anthony Kennedy asked early in the hourlong argument. His is a crucial and unpredictable vote in the case, Christian Legal Society v. Martinez. . . . Chief Justice John Roberts Jr. bared his temper in exchanges with former Solicitor General Gregory Garre, who counts Roberts as his mentor from the days when both worked at Hogan & Hartson. Garre, now chairman of the appellate practice at Latham & Watkins, held his ground as he defended the University of California Hastings College of the Law's handling of the Christian group. . . . The San Francisco law school denied official recognition to the society because of its bylaws, which require members and leaders to adhere to its religious views and bars membership those who advocate or participate in homosexual conduct. Those requirements, the university argued, violate the university's nondiscrimination policy, which says recognized student organizations must admit any student regardless of their "status or beliefs."

Judge-Prosecutor Affair Appeal Rebuffed by U.S. Supreme Court

By Greg Stohr, Bloomberg

04-19-10 -- The U.S. Supreme Court rejected an appeal from a convicted double murderer who said his Texas trial was tainted because the judge and prosecutor previously had a sexual relationship. . . . The justices today left intact a Texas appeals court’s refusal to reopen Charles Dean Hood’s case. . . . Hood, 40, contended that the affair between Judge Verla Sue Holland and Thomas S. O’Connell Jr. had cast a “deep shadow” over the Texas criminal justice system and violated his constitutional rights. . . . Hood was convicted in 1990 of killing his boss and his boss’s girlfriend in the house the three shared. His lawyers say they didn’t have firm evidence of the long-rumored affair until 2008, shortly before he was scheduled to be executed. . . . Prosecutors said that Hood’s lawyers had reason to suspect the affair years earlier and that they waited too long to raise the issue in court.

At the Supreme Court, the Sound of Silence, Times 7

Tony Mauro, The National Law Journal

04-19-10 -- It's official: for the seventh and final time this term, the Supreme Court has turned down a request from the media for same-day access to the audio of its oral arguments. C-SPAN and other broadcast networks had requested the audio for today's oral argument in Christian Legal Society v. Martinez, an important church-state dispute that has attracted broad interest and amicus participation. . . . With the Court's oral argument season ending April 28, that means the entire current term will end with none of the arguments being given same-day treatment -- the first term since 2004-2005 in which no arguments were approved for immediate release. The Court first allowed for such release in high-interest cases with Bush v. Gore in 2000, to enable the press and the public to hear the arguments while they were still fresh and newsworthy. Without expedited release, the audio of oral arguments is not usually available to the public until several months after the end of the term, after processing at the National Archives -- long after their news value has expired.

Supreme Court to consider case against California law school

By Robert Barnes, Washington Post Staff Writer

04-16-10 -- At the oldest law school in the West, law is being made this semester, not just taught. . . . In a case that carries great implications for how public universities and schools must accommodate religious groups, the University of California's Hastings College of the Law is defending its anti-discrimination policy against charges that it denies religious freedom. . . . The college, which requires officially recognized student groups to admit any Hastings student who wants to join, may be well-meaning, says the student outpost of the Christian Legal Society. But the group contends that requiring it to allow gay students and nonbelievers into its leadership would be a renunciation of its core beliefs, and that the policy violates the Constitution's guarantee of free speech, association with like-minded individuals and exercise of religion. . . . "Hastings' policy is a threat to every group that seeks to form and define its own voice," the group told the court in a brief. The case, Christian Legal Society v. Martinez, will be argued in the Supreme Court Monday morning. . . . Hastings counters that the CLS, a national organization that seeks to "proclaim, love and serve Jesus Christ through the study and practice of law," is demanding special treatment. It wants the college's official stamp of approval and the access to benefits and student activity fees that come with it, but it will not commit to following the nondiscrimination policy that every other student group follows.

Justices Take Up Workplace Privacy With Text Message Case

Marcia Coyle, The National Law Journal

04-16-10 -- The Supreme Court on Monday leaps into the high-tech world of text messaging in a challenge with potentially huge implications for the privacy rights of senders and receivers and for workplace communications. . . . City of Ontario, Calif. v. Quon, one of two cases leading off the final round of oral arguments this term, is the Court's first foray into workplace monitoring of electronic and digital communications. . . . The city asks the justices whether a member of its police SWAT team had a Fourth Amendment "reasonable expectation of privacy" in text messages transmitted on his SWAT pager. The case also raises the issue of whether the senders of messages to the SWAT pager had their own reasonable expectation that the city would not review their messages.

Advocacy Groups Split in Supreme Court Case Over Christian Law Student Group

Dozens of amicus briefs filed in Christian Legal Society case

Tony Mauro, The National Law Journal

04-12-10 -- Law schools don't just turn out lawyers. In recent years, they have also produced litigation that finds its way onto the U.S. Supreme Court's docket. . . . In 2003, the University of Michigan Law School was the focus of a major affirmative action case, Grutter v. Bollinger. A coalition of law schools that barred military recruiters from campuses figured in Rumsfeld v. FAIR in 2006. . . . On April 19, the Court will hear arguments in Christian Legal Society v. Martinez, which will make the University of California Hastings College of the Law the next law school in the spotlight. A Christian student group challenged the San Francisco school for requiring it to adopt the university's nondiscrimination policy if it wants to become a registered student organization. The Christian Legal Society, represented by former appeals court judge and Stanford Law School professor Michael McConnell, claims the state school's requirement to allow nonadherents to join and even lead the group as a condition of recognition violated its freedom of association.

Supreme Court May Hold Key for Vaccine Foes

Tony Mauro, The National Law Journal

04-05-10 -- In spite of recent courtroom losses, parents who blame their children's autism at least in part on childhood vaccines say their legal battle is far from over. . . . "We've always been in it to the very end," said Theresa Cedillo of Yuma, Ariz., whose autistic daughter Michelle became the focus of a key test case at the U.S. Court of Federal Claims in 2007. Even though the special master in the case ruled against her, Cedillo said, "I am optimistic. We have met our burden." . . . One reason for her optimism is that the U.S. Supreme Court has agreed to hear next fall the case of Bruesewitz v. Wyeth, a non-autism case that asks the justices to decide whether the federal vaccine law pre-empts state law tort claims of vaccine design defects.

Supreme Court Ruling Opens Federal Courts to More Class Actions

Marcia Coyle, The National Law Journal

04-01-10 -- In a significant blow to business, the Supreme Court on Wednesday ruled that certain class actions barred or limited by state laws may proceed in federal courts. . . . In Shady Grove Orthopedic Associates v. Allstate Insurance Co. (pdf), a 5-4 majority, led by Justice Antonin Scalia, held that the federal class action rule, Civil Procedure Rule 23, trumped a New York law prohibiting class actions that seek to recover statutory penalties or minimal recoveries. . . . "The Court's decision is good for those who use class actions as a remedy to corporate wrongdoing," said Scott Nelson of Public Citizen Litigation Group, who argued the case for Shady Grove. "The Court did the right thing today." . . . But the decision will "upend" a large number of state statutes that limit remedies which can be sought by class actions or that outright prohibit certain class actions, said Archis Parasharami, co-chair of Mayer Brown's consumer litigation and class action practice.

High Court Justices Appear Skeptical of Private Contempt Prosecutions

Jordan Weissmann, The National Law Journal

04-01-10 -- In a case closely watched by advocates for domestic abuse victims, several Supreme Court justices on Wednesday expressed serious discomfort with a District of Columbia law that lets the victims themselves bring criminal prosecutions to enforce restraining orders. . . . During oral argument in Robertson v. United States ex rel. Watson, at least four justices wondered aloud about the protections afforded to criminal defendants facing such charges. . . . Justice Antonin Scalia compared the District's system to tearing down the Department of Education and replacing it with a private corporation. "No good, right?" Scalia asked at the end of his analogy. . . . The case asks whether the individuals who bring criminal contempt prosecutions -- often battered women who work without the help of a lawyer -- do so as an agent of the government. In 2008, the D.C. Court of Appeals ruled that under D.C. law, Wykenna Watson was allowed to bring contempt charges against an ex-boyfriend in her own name, completely independent of any government authority.

March 2010

Court: Defendants Entitled to Immigration Advice

By The Associated Press, New York Times 

03-31-10 -- Immigrants must be told by their lawyers whether pleading guilty to a crime could lead to their deportation, the Supreme Court said Wednesday. . . . The high court's ruling came in the case of Jose Padilla, who was born in Honduras. He asked the high court to throw out his 2001 guilty plea to drug charges in Kentucky. . . . Padilla, who has lived in the United States for more than 40 years as a legal permanent resident, said he asked his lawyer at the time whether a guilty plea would affect his immigration status and was told it wouldn't. Padilla's trial lawyer was wrong, and he now faces deportation. . . . His lawyer for the appeal told the Supreme Court that the incorrect information given Padilla was a violation of the Sixth Amendment right to ''effective assistance of counsel.''  . . . The Supreme Court's majority agreed. . . . ''It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the 'mercies of incompetent counsel,''' Justice John Paul Stevens said in writing for the court.

Spin or Win for Investment Industry in High Court Mutual Funds Case?

Tony Mauro, The National Law Journal

03-31-10 -- The investment industry declared victory Tuesday as the U.S. Supreme Court ruled in a closely watched case that investor advocates had hoped would make it easier to challenge high fees charged by advisers in the $9 trillion mutual fund business. . . . But industry critics also claimed a win in the case of Jones v. Harris Associates, asserting that the high court decision allows plaintiffs to use the kinds of fee comparisons that could help them prove that advisers' fees are excessive. . . . "This is a tremendous victory for investors," said David Frederick of Washington's Kellogg, Huber, Hansen, Todd, Evans & Figel, who argued for the investors in the case before the Court. Frederick dismissed as "typical industry spin" the favorable comments made by the investment industry in the aftermath of Tuesday's ruling.

Justices Limit Qui Tam Cases but New Health Care Law
Does Opposite

Marcia Coyle, The National Law Journal

03-31-10 -- The new landmark health care reform law made its first appearance in a Supreme Court decision Tuesday involving whistleblower claims under the federal False Claims Act. . . . In Graham County Soil and Water Conservation District v. U.S. ex rel. Wilson (pdf), Justice John Paul Stevens, writing for a 7-2 majority, held that whistleblowers whose allegations are based on publicly disclosed information in state or local reports and investigations are barred from filing so-called qui tam lawsuits. . . . The Court's decision -- which also drew the first dissenting opinion by Justice Sonia Sotomayor -- said the act's public disclosure bar was not limited to federal sources of information. . . . But as Stevens noted, both in his opinion and his summary on the bench, the Patient Protection and Affordable Care Act, signed by President Barack Obama on March 23, limits the public disclosure bar to federal sources of information.

Supreme Court Argument Report: The Justices Add It All Up

Laurel Newby, Law.com

03-31-10 -- During a Supreme Court argument hour swimming with numbers and studded with a few humorous moments, the justices on Tuesday wrestled with the standard for calculating good-time credits for federal prison sentences. . . . The issue before the Court in Barber v. Thomas is the interpretation of a "term of imprisonment" under the federal good-time credit statute. The petitioning federal inmates argue that they should be eligible for the statutory 54 days of good-time credit for each year of their entire sentence as originally imposed. The position of the Bureau of Prisons is that the calculation of good-time credit is based only on time actually served by the prisoner.

Supreme Court Justices Hostile to 'Foreign-Cubed' Cases

Tony Mauro, The National Law Journal

03-30-10 -- U.S. Supreme Court justices appeared hostile on Monday toward so-called "foreign-cubed" securities fraud class actions in which the plaintiffs and stock issuers are foreign and the alleged fraud took place on foreign soil. . . . The Court heard arguments in Morrison v. National Australia Bank, brought by Australian investors in U.S. courts to challenge statements made by Australia's largest bank. A district court judge and the 2nd U.S. Circuit Court of Appeals sided with the bank in finding no U.S. jurisdiction over the suit. . . . International companies and foreign governments including France, the United Kingdom and Australia, filed briefs in the case arguing against jurisdiction for U.S. courts. Even though class actions have been reined in lately, plaintiffs face more favorable rules here than they would in most foreign courts. The briefs by the foreign nations assert that if the Australian bank loses, U.S. courts will interfere with the policy choices they have made in regulating securities.

Domestic Violence Victim Fights for Her Name at the
Supreme Court

Case asks who truly enforces restraining orders

Jordan Weissmann, The National Law Journal

03-30-10 -- Advocates for domestic violence victims are sounding the warning about a little-noticed U.S. Supreme Court case that they say could make it much harder for battered women and men to enforce restraining orders against their abusers. . . . The case Robertson v. U.S. ex rel. Watson, set for argument on Wednesday, challenges the way restraining orders are enforced in the District of Columbia. D.C. law allows victims themselves to bring criminal contempt charges when abusers infringe on a court order. At least 14 states have similar setups, according to an amicus brief filed by George Washington University Law School's Domestic Violence Legal Empowerment and Appeals Project. . . . Family law experts say the private right to prosecute gives teeth to restraining orders -- or civil protection orders, as they're called in the District. Victims can file the paperwork and argue at the hearing that the judge should jail a tormentor. They don't have to convince a busy prosecutor to add to his or her workload.

Genes Linked to Breast, Ovarian Cancers Are Ruled Unpatentable

Case has become a lightning rod for the issue of genetic patenting; multiple amicus briefs were filed on behalf of both sides

Mark Hamblett, New York Law Journal

03-30-10 -- Two isolated genes closely associated with breast and ovarian cancers are unpatentable, a federal judge ruled Monday. . . . Southern District of New York Judge Robert W. Sweet decided that the two genes, once separated from the lengthy DNA sequence, cannot be considered sufficiently new and useful to be deemed patentable. . . . The judge's 152-page decision came in Association for Molecular Pathology v. U.S. Patent and Trademark Office, 09-civ-4515, a case closely watched by the medical community and cancer patients who argued that the two genes in dispute, BRCA1 and BRCA2, should not be patented and privately owned. . . . The U.S. Patent and Trademark Office has issued patents for more than 20 percent of the human genome, including genes associated with colon cancer, muscular dystrophy and Alzheimer's disease.

Justices to Consider a Border Battle Over Lawsuits

High court case challenges use of American courts by foreign plaintiffs

Tony Mauro, The National Law Journal

03-29-10 -- "Foreign-cubed" is the name of the latest legal nemesis that keeps lawyers for companies ranging from Toyota to Vivendi up at night. . . . The term refers to securities class action litigation in which the investors are foreign, the issuers are foreign and the fraudulent conduct took place on foreign soil. And yet, because of some company tie to the United States, large or minuscule, they end up in U.S. courts, where plaintiffs usually can do a lot better than if the suits were filed abroad. . . . Six years after the moniker was first coined, a foreign-cubed suit has made its way to the U.S. Supreme Court, which will hear the case, Morrison v. National Australia Bank, today. Foreign investors accused Australia's largest bank of fraud involving a Florida subsidiary, but the bank insists all of the disputed activity took place in Australia. So far, the bank has won.

High Court Justices Delay Execution, May Examine DNA Testing Issue

Marcia Coyle, The National Law Journal

03-26-10 -- The Supreme Court's "11th hour" stay of execution issued Wednesday evening for a Texas death row inmate may give the justices another chance to revisit a key DNA testing question left unanswered last term. . . . The justices unanimously granted the delay one hour before Henry Skinner was scheduled to die for the 1993 murders of his girlfriend and her two adult sons. Skinner, who claims he is innocent, has sought DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. The Court's order (pdf) will remain in effect until the justices act on Skinner's petition for certiorari. . . . Skinner's counsel, Robert Owen of the University of Texas School of Law, expressed relief in a statement Wednesday night, saying, "As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing."

High Court to Decide Whether Anti-Retaliation Shield Protects Only Those Who Complain in Writing

Tresa Baldas, The National Law Journal

03-25-10 -- The U.S. Supreme Court has agreed to hear a retaliation lawsuit that seeks to answer a seemingly simple question: What does it mean to "file a complaint"?  . . . That question lies at the heart of Kasten v. Saint-Gobain Performance Plastics Corp., a case in which a Wisconsin factory worker claimed he was unlawfully fired after verbally complaining to his bosses about the placement of time clocks. The employer argued that only written complaints -- not oral ones -- are protected activity under the anti-retaliation provision of the Fair Labor Standards Act. The 7th U.S. Circuit Court of Appeals agreed in July 2009. . . . On Monday, three months after the 7th Circuit denied Kevin Kasten's request for an en banc hearing, the Supreme Court granted certiorari in the case.

Court Weighs Timing of Death Row Appeal

By Adam Liptak, New York Times 

03-24-10 -- As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case. . . . “Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?” . . . Corey L. Maze, Alabama’s solicitor general, said that was so. . . . “The merits of the claim have never been decided?” Justice Stevens went on. . . . Mr. Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late. . . . The other justices had been focused solely on that procedural question, and it was not clear whether Justice Stevens’s attempt to reorient their thinking had had any effect. . . . The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “aggravating circumstances.”

Labor Decisions at Risk as Justices Struggle With NLRB Authority

Marcia Coyle, The National Law Journal

03-24-10 -- With the legitimacy of more than 500 labor-management decisions at stake, the U.S. Supreme Court on Tuesday appeared divided over whether the vacancy-hobbled National Labor Relations Board can operate with only two of its five board members. . . . "We have to decide whether it is OK for two members to set the most major policies or whether they can't conduct even the simplest adjudications," said Justice Stephen Breyer during arguments in New Process Steel L.P. v. National Labor Relations Board. . . . The board has been operating for nearly 27 months with just two members: Democratic-appointed Chairwoman Wilma Liebman and Republican-appointed member Peter Schaumber. Following board tradition, Liebman and Schaumber have agreed to resolve only those cases in which they can agree --586 so far, according to the government's most recent count -- and to set aside controversial or policy-making cases until the board has at least three members.

Supreme Court Rules Against Student Loan Industry

Tony Mauro, The National Law Journal

03-23-10 -- Rejecting the views of 33 states, the federal government and the student loan industry, the Supreme Court on Tuesday unanimously ruled in favor of a loan delinquent who used the bankruptcy laws to restructure his debt. . . . The decision in United Student Aid Funds v. Espinosa was the only ruling handed down Tuesday, and the Court is not expected to issue any rulings when it sits tomorrow, making it unlikely there will be any rulings again from the Court before March 30, the next decision day on which it will be in session. Several cases argued at the beginning of the term -- including First Amendment blockbusters United States v. Stevens, involving animal cruelty videos, and Salazar v. Buono, concerning religious symbols on public property -- remain undecided.

Over an Alito Dissent, High Court Denies Review in School Band Case

Tony Mauro, The National Law Journal

03-23-10 -- When a controversial decision of the 9th U.S. Circuit Court of Appeals is appealed to the Supreme Court, the justices often take the bait and reverse. But on Monday, the Supreme Court denied review of a 9th Circuit ruling that nixed the performance of a religious instrumental piece by a public high school band in Washington state. Justice Samuel Alito Jr. dissented from the Court's denial of review. . . . A high school band in Everett, Wash., chose to perform "Ave Maria" at graduation ceremonies, but school officials vetoed the plan, explaining that the piece's title alone had religious connotations, even though, as an instrumental piece, it contained no religious words. The officials noted that the year before, graduation attendees had complained about a school choir piece that referred to God and angels. Kathryn Nurre, a senior, challenged the officials' action as a violation of her freedom of speech. Both the district court for the Western District of Washington and the 9th Circuit upheld the officials' actions.

Supreme Court to Rule on Prosecutorial Immunity

Tony Mauro, The National Law Journal

03-23-10 -- The Supreme Court agreed on Monday to rule on a Louisiana dispute that could be an important test of prosecutorial immunity in a death penalty case. . . . In Connick v. Thompson, the 5th U.S. Circuit Court of Appeals affirmed a lower court verdict that awarded accused murderer John Thompson $14 million for the district attorney's failure to train its lawyers about so-called Brady violations, a failure that led to his wrongful conviction and death sentence in 1985. . . . Current Orleans Parish District Attorney Leon Cannizaro Jr. appealed the ruling to the Supreme Court, asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."

High Court to Weigh Citizenship Rule That Varies by Sex

Mark Sherman, The Associated Press, Law.com

03-23-10 -- One of Ruben Flores-Villar's parents is an American. Unfortunately for him, it is his father and not his mother, a fact that has complicated Flores-Villar's attempts to acquire U.S. citizenship and avoid criminal charges for being in the United States illegally. . . . Now, the Supreme Court is entering a curious corner of U.S. immigration law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mothers are citizens to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves. . . . The justices agreed Monday to hear Flores-Villar's appeal of his criminal conviction and consider whether a provision of immigration law unfairly discriminates on the basis of gender. The case will be argued in the fall. . . . Flores-Villar, 35, was born in Tijuana, Mexico, but grew up in the San Diego area, in the care of his father and grandmother.

Alito: Court Wrong to Deny 'Ave Maria' Case

Lee Ross  FOXNews (blog) 

03-22-10 -- The beautiful strains of "Ave Maria" will not echo through the marbled walls of the Supreme Court, nor will arguments, over Justice Samuel Alito's objections, in a case about the playing of the standard at a high school graduation. . . . On Monday the high court announced it will not hear the appeal of Kathryn Nurre who with other classmates was prohibited from performing an instrumental version of the popular tune at their graduation ceremony from an Everett, Washington high school. . . . The school's principal after consultation with other officials struck the song from the graduation program. District superintendent Carol Whitehead justified the decision by reasoning that "many people would see [the song] as religious in nature." . . . Nurre sued the school district claiming its decision violated her constitutional rights. Lower courts have ruled in favor of the district but in their petition to the Supreme Court, Nurre's lawyers contend "the censorship in this case involves political correctness run amuck."

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Justice Alito's dissent and the Institute's petition for certiorari are available at www.rutherford.org. / "Free speech in the public schools is on life support," said John W. Whitehead, president of The Rutherford Institute. "With this decision, the Supreme Court may have pulled the plug. It's a sad day for freedom in America."

Movie Script Revision Needed?
High Court Accepts Case of Exonerated Inmate

By Debra Cassens Weiss, ABA Journal

03-22-10 -- The U.S. Supreme Court has agreed to decide whether the New Orleans District Attorney’s office may be liable for failing to turn over a crime lab report that could have helped an inmate avoid the death penalty. . . . Touchstone Pictures has signed a deal to produce a movie on the case of the inmate, John Thompson, who was acquitted of murder in a retrial after spending 18 years in prison for the crime. The Supreme Court granted cert on Monday to decide the liability issue, the Associated Press reports. . . . In 2007, a jury awarded Thompson $14 million for the district attorney’s failure to train its employees about turning over exculpatory evidence. On appeal, the New Orleans-based 5th U.S. Circuit Court of Appeals evenly split in an en banc ruling, which had the effect of upholding the judgment. . . . In the first trial, prosecutors had used Thompson’s conviction in a separate carjacking to obtain the death penalty. A crime lab report had found Thompson’s blood type did not match that of the carjacking perpetrator, but it was never turned over to the defense.

Despite High Court Skepticism,
Advocates Defend Privileges Clause Push

Tony Mauro, The National Law Journal

03-10-10 -- It seemed like a good idea at the time.

Across a broad spectrum of scholars and advocacy groups, it was agreed that the case of McDonald v. City of Chicago presented the best -- and possibly the last -- chance to revive the argument that the "privileges or immunities" clause of the 14th Amendment was the soundest way to apply individual rights like the Second Amendment right to bear arms to states and localities. . . . So when Alan Gura rose at the U.S. Supreme Court on March 2 to assert that the clause was a "simpler, more essential" path than the traditional due process clause, he had the wind at his back in the form of liberals and conservatives alike cheering him on from the packed audience. . . . Then reality struck. First, Chief Justice John Roberts Jr., and then Justice Antonin Scalia, brusquely swept the argument aside in favor of the tried and true path of due process. Scalia was derisive in his criticism of Gura, noting that the privileges or immunities argument was the "darling of the professoriate" and hinting that Gura was "bucking for a place on some law school faculty" by advancing it. Even Justice Ruth Bader Ginsburg seemed worried about unforeseen consequences of Gura's approach, asking him what unenumerated rights might be swept in by invoking the privileges or immunities clause.

High Court Finds Lawyers and Their Advice Covered by Bankruptcy Reform Law

Marcia Coyle, The National Law Journal

03-09-10 -- Consumer bankruptcy lawyers are "debt relief agencies" under a 2005 federal bankruptcy law and restrictions on the type of advice they can give clients are constitutional, the U.S. Supreme Court ruled on Monday. . . . In a challenge brought by a Minnesota law firm, the justices unanimously held that the plain language of the Bankruptcy Abuse Prevention and Consumer Protection Act clearly indicates that lawyers function as debt relief agencies when they provide bankruptcy help to consumers covered by the law. The 2005 law was enacted to combat abuse of the bankruptcy system. . . . The Supreme Court case, Milavetz, Gallop & Milavetz v. U.S., actually raised three issues for the justices: . . . Whether lawyers are debt relief agencies. . . . Whether a provision prohibiting lawyers from advising clients to incur more debt "in contemplation" of filing for bankruptcy violates First Amendment free speech guarantees. . . . Whether provisions requiring a debt relief agency to include the sentence "We are a debt relief agency," or one substantially similar, in all advertisements mandate unconstitutional compelled speech. . . . The 8th U.S. Circuit Court of Appeals had ruled in favor of the law firm only on the second issue -- the restriction on lawyers' advice. That ruling prompted a cross-petition for Supreme Court review by the government.

Supreme Court Puts High-Emotion Funeral Protest Case on Docket

Tony Mauro, The National Law Journal

03-09-10 -- Few recent confrontations have stirred as much emotion and debate as the spate of funeral protests conducted at funerals for U.S. soldiers killed in the wars in Iraq and Afghanistan. On Monday, the Supreme Court agreed to take up one of the cases stemming from those protests, a hot-button First Amendment dispute that will be argued in the fall. . . . Members of the Topeka, Kan., Westboro Baptist Church, seeking to spread the word that God is punishing America for its acceptance of homosexuality, have shown up at funerals with anti-gay and anti-war protest signs carrying messages such as "Thank God for Dead Soldiers," and "God Hates You." The protests have triggered lawsuits and legislation nationwide, posing a dilemma for those seeking to stifle the protests without suppressing First Amendment rights.

Chief Justice Recuses in New Wyeth Case

Tony Mauro, The National Law Journal

03-09-10 -- The Supreme Court on Monday announced it was granting review in Bruesewitz v. Wyeth, a test of the scope of the pre-emption provision of the National Childhood Vaccine Injury Act of 1986. It also noted that Chief Justice John Roberts Jr. "took no part" in the consideration or decision of the Court to take the case. . . . Though the justices almost never reveal their reasons for recusal, this one is almost certainly based on the fact that, as of the last financial disclosure form filed by Roberts in May 2009, he owned stock valued at $15,000 or less in Pfizer Inc. Pfizer acquired rival Wyeth in late 2009.

US top court upholds lawyer bankruptcy advice law

At issue: incurring more debt before bankruptcy filing

* Law challenged for violating free-speech rights

* Government lawyers say law only targeted abuses

By James Vicini, Reuter

03-08-10 -- The Supreme Court on Monday unanimously upheld part of the U.S. bankruptcy law that bars attorneys from advising clients to take on more debt while considering a bankruptcy filing. . . . The opinion by Justice Sonia Sotomayor reverses a ruling by a U.S. appeals court that a provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was unconstitutionally broad and violated free-speech rights. . . . The provision prohibits bankruptcy professionals like attorneys from advising their clients to incur more debt, such as mortgages or student loans, before filing for creditor protection. . . . The ruling is a victory for the U.S. Justice Department, which defended the provision. It said Congress adopted the law fight abuse of the bankruptcy system encouraged by lawyers.

Supreme Court to Decide Whether Compensation Law Bars Vaccine Suits

By Debra Cassens Weiss, ABA Journal

03-08-10 -- The U.S. Supreme Court has agreed to decide whether a federal law bars a lawsuit that claims a vaccine caused a child’s seizures and developmental delays. . . . The parents of Hannah Bruesewitz claim the girl was injured as a result of a design defect in the diphtheria-tetanus-pertussis vaccine made by Wyeth, according to stories in Reuters, the Associated Press, the Wall Street Journal (sub. req.). and SCOTUSblog.

Supreme Court to Decide First Amendment Rights of Funeral Picketers

By Debra Cassens Weiss, ABA Journal

03-08-10 -- The U.S. Supreme Court has agreed to decide whether anti-gay picketers at military funerals are protected by the First Amendment. . . . The father of a Marine killed in Iraq is seeking to reinstate a $5 million judgment against the picketers, according to SCOTUSblog and the Associated Press. . . . The picketers, members of a Kansas church, show up at the funerals to publicize their belief that military deaths are punishment for tolerance of homosexuality. They carry signs with slogans such as “God Hates Fags” and “Priests Rape Boys.” . . .  t the funeral for Lance Cpl. Matthew Snyder, picketers carried signs that read, "Thank God for dead soldiers” and “Semper fi fags." A federal jury in Baltimore had awarded Snyder’s father $2.9 million in compensatory damages and $8 million in punitive damages. The trial judge reduced the total award to $5 million, but the Richmond, Va.-based 4th U.S. Circuit Court of appeals overturned the verdict on First Amendment grounds.

Supreme Court Keeps $18 Million Internet Copyright Settlement Alive

Marcia Coyle, The National Law Journal

03-03-10 -- An $18 million settlement of a copyright infringement suit between Internet publishers and freelance writers is back on track because of a U.S. Supreme Court ruling on Tuesday. . . . .In Reed Elsevier v. Muchnick, the justices, in an 8-0 decision, held that the 2nd U.S. Circuit Court of Appeals was wrong when it ruled in 2008 that the district court lacked jurisdiction to certify the class or the settlement in the litigation. Justice Sonia Sotomayor, a former 2nd Circuit judge, did not participate in the high court case. . . . The 2005 settlement followed the Supreme Court's decision in 2001 in New York Times Co. v. Tasini, in which the justices held that the federal Copyright Act does not permit publishers to reproduce freelance works electronically without specific permission from the authors. After Tasini, four infringement class actions were consolidated in the Southern District of New York. The district court subsequently certified the class and settlement. Ten authors objected to certification on the grounds that it was unfair.

High Court Justices Shoot Down 'Privileges'
Argument in Gun Case

Tony Mauro, The National Law Journal

03-03-10 -- The U.S. Supreme Court will almost certainly extend the scope of the Second Amendment right to bear arms to limit state and federal regulation of firearms, based on oral arguments in McDonald v. City of Chicago on Tuesday. . . . But comments from the justices made it clear they want to do it the old-fashioned way -- through the 14th Amendment's due process clause, rather than via the same amendment's "privileges or immunities" clause, which had been advanced as a better way to bolster a range of rights including economic rights. Several justices also indicated that, as with other individual rights, states and cities will be able to impose some regulations on firearms.

In Chicago Gun Case, Supreme Court Sounds Note of Caution

Tony Mauro, The National Law Journal

03-02-10 -- When oral argument in the crucial Second Amendment case of McDonald v. Chicago ended at the Supreme Court Tuesday morning, one thing appeared clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the "privileges or immunities" clause of the 14th Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the "due process" clause seems almost certain to be Court's chosen path. . . . Alan Gura, who was arguing for the "privileges or immunities" route, ran into skepticism almost from the moment he began, when Chief Justice John Roberts Jr. said Gura had a "heavy burden" because his approach entailed striking down the Slaughterhouse cases of 1873.

Supreme Court Focuses on Jury Impartiality in Enron Case

Tony Mauro, The National Law Journal

03-02-10 -- The U.S. Supreme Court on Monday heard arguments in the third of a series of challenges to the "honest services" fraud statute, this time in the context of the prosecution of former Enron Corp. executive Jeffrey Skilling. But most of the justices' attention focused instead on the other major issue in Skilling's case: whether the local jury pool in Houston was so poisoned by rage against Enron that it was impossible to pick an impartial jury -- even when potential jurors said they could be fair. . . . . Although several justices voiced concern about the impartiality of certain jurors in the 2006 trial, others seemed equally worried about second-guessing trial judges who have long been entrusted with screening out biased jurors during voir dire. . . . . "I'm worried about a fair trial in this instance," said Justice Stephen Breyer at one point. But at another point he said he was concerned that, if the Supreme Court promulgates a rule defining when local bias should automatically trigger a change of venue for a trial, "we get into the business of running the trial court's trials." Picking jurors will become harder and more protracted, Breyer fretted.

Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline

Marcia Coyle, The National Law Journal

03-02-10 -- The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be to warrant stopping the clock on the time for filing a prisoner's federal habeas petition. . . . . In Holland v. Florida, the justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock. . . . . The issues stem from the death penalty conviction of Albert Holland in 1991. After his conviction became final in 2001, Holland had 365 days to file a federal habeas petition. The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations. That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction motion was denied -- leaving him only 14 days in which to file the federal petition. Collins ultimately missed that deadline.

A Supreme Court of 1 Justice -- Sotomayor -- Rules Against Former 'D.C. Madam' Lawyer

Tony Mauro, The National Law Journal

03-02-10 -- Washington, D.C., lawyer Montgomery Blair Sibley, one-time attorney for the "D.C. Madam," has been a continuing gadfly at the Supreme Court, challenging it on a range of issues and then suing the Court itself when it does not rule in his favor or does not take up his case. His suits cause recusal problems for the Court, because the justices tend to take themselves out of the case when they are named targets. . . . .That was the problem Monday when the Court disposed of Sibley v. Alito et al., with the other respondents being the other justices he claims improperly refused to hear an earlier case. That list included former Justice David Souter, but not the current Justice Sonia Sotomayor. As a result all justices except Sotomayor recused, depriving the Court of a quorum.

Justices Reinstate Settlement With Writers

By Adam Liptak, New York Times

03-02-10 -- The Supreme Court on Tuesday resurrected a possible settlement in a class-action lawsuit brought by freelance writers who said that newspapers and magazines had committed copyright infringement by making their contributions available on electronic databases. . . . .The proposed settlement was prompted by a 2001 decision from the Supreme Court in favor of six freelance authors claiming copyright infringement in The New York Times Company v. Tasini. After the Tasini decision, many freelance works were removed from online databases. Most publishers now require freelance writers to sign contracts granting both print and online rights. . . . .After the decision, the authors, publishers and database companies who were parties to several class-action lawsuits negotiated a global settlement that would pay the plaintiffs up to $18 million.

Supreme Court Dismisses Uighurs' Appeal

By Jess Bravin, Wall Street Journal

03-01-10 -- The Supreme Court declined to hear a case brought by Uighurs held by the U.S. at Guantanamo Bay, Cuba, who are seeking to be resettled in the U.S. . . . The high court returned the case to lower courts, noting the government's claim that all the Uighur detainees have received at least one offer of resettlement in another country. . . . The Supreme Court's order also vacated a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that found federal courts have no authority to force the federal government to resettle detainees in the U.S. That appellate ruling overturned a federal district judge's finding that the U.S. was obligated to admit the Uighurs to the U.S. rather than jail them at Guantanamo pending resettlement. . . . By vacating the ruling, the Supreme Court left room for another test of the issue, which could be relevant to dozens of Guantanamo detainees who are seeking release but have no acceptable third country in which to resettle. . . . Sabin Willett, a lawyer representing the Uighurs, said there were conditions on the resettlement offers that made them unacceptable to his clients.

February 2010

'Miranda' Dealt One-Two Punch by High Court

Tony Mauro, The National Law Journal

02-25-10 -- It has not been a good week for the famed Miranda warning at the hands of the Supreme Court. . . . In decisions issued on Tuesday and Wednesday, the Court ruled that confessions should be admitted at trial even when police interviewed suspects in circumstances that lower courts viewed as Miranda violations. . . . The Court on Wednesday issued Maryland v. Shatzer (pdf), establishing new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda's right to remain silent. . . . The Maryland case came down a day after the justices decided Florida v. Powell (pdf), in which a 7-2 majority Court said that Florida's alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.

Supreme Court Rules in Case Involving 'Demeanor-Based' Rejection of Juror

John Council, Texas Lawyer

02-25-10 -- On Monday, the U.S. Supreme Court reversed a 5th U.S. Circuit Court of Appeals decision regarding the "demeanor-based" rejection of a potential juror in a death penalty case. Thaler v. Haynes involves a defense objection under Batson v. Kentucky (pdf) (1986) to the prosecution's peremptory strike of a potential juror; Batson forbids striking potential jurors from a panel solely based on race. . . . The prosecution explained that it had struck the potential juror because she appeared not to be serious during questioning and her "body language" belied her "true feeling" about the death penalty, according to the opinion. The state trial court judge upheld the strike because the prosecution provided a race-neutral reason, but that judge did not observe the potential juror's behavior. . . . The 5th Circuit in its Batson analysis ruled that it couldn't defer to the state trial court's decision because the judge didn't see the potential juror's demeanor. The 5th Circuit reversed a federal district court decision that had denied habeas relief, and it ordered a new trial.

Chief Justice 'Startled' by Government Errors in Veterans Cases

Marcia Coyle, The National Law Journal

02-24-10 -- When he was in private practice at Hogan & Hartson, Chief Justice John Roberts Jr. did not handle veterans' benefits claims. So, he understandably found "startling" information with which lawyers for veterans are only too familiar: In litigating with veterans, the government more often than not takes a position that is substantially unjustified. . . . In oral arguments Monday in Astrue v. Ratliff, an attorney fee case under the Equal Access to Justice Act, James Leach of Rapid City, S.D., told the Court that 42 percent of Social Security cases result in an EAJA attorney fee award. . . . "If it's 42 percent, that's quite a high number of cases in which the government's position is found substantially -- not substantially justified as well as legally erroneous," Leach said. "In veterans cases, it's even worse." . . . The U.S. Court of Appeals for Veterans Claims, which reports the number of EAJA awards granted annually, reported that for 2008 and 2009, 70 percent resulted in fee awards, Leach told the justices.

Chicago May Face Uphill Fight in Firefighters Case at Supreme Court

Marcia Coyle, The National Law Journal

02-24-10 -- The Supreme Court on Monday seemed supportive of arguments by Chicago minority firefighters that a new 300-day period for filing discrimination charges opened each time the city used scores from a discriminatory examination to hire someone. . . . John Payton, director-counsel and president of the NAACP Legal Defense and Educational Fund, told the justices that Chicago on 11 occasions used unlawful cutoff scores on a qualifying exam to make hiring decisions. . . . "There's a violation [of Title VII of the Civil Rights Act] every time there's a use," he argued. . . . Lewis v. City of Chicago stems from a 1995 entry-level exam for firefighter positions. Based on test scores, the city divided 26,000 applicants into three categories: well qualified, qualified and not qualified. Although 37 percent of the applicants were African-American, only 11.5 percent of African-Americans were found to be "well qualified." The city drew solely from the "well-qualified" pool when hiring 10 classes of firefighters between 1996 and 2001.

Supreme Court Sets 14-Day Rule for Questioning of Suspect After Lawyer Request

By Debra Cassens Weiss, ABA Journal

02-24-10 -- The U.S. Supreme Court has ruled that a “break in custody” permits police to question a suspect who waived his Miranda rights more than two years after initially requesting a lawyer. . . . A break in custody of more than two weeks is sufficient for new questioning without a lawyer, according to the opinion (PDF) by Justice Antonin Scalia. All of the justices agreed with the ruling for the state, although two—Justices John Paul Stevens and Clarence Thomas—did not agree with the 14-day rule. . . . “While it is certainly unusual for this court to set forth precise time limits governing police action, it is not unheard of,” Scalia wrote. A 14-day period “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody."

Supreme Court Establishes 'Nerve Center' Test for Corporate Jurisdiction

Marcia Coyle, The National Law Journal

02-24-10 -- Using simplicity and practicality as its touchstones, a unanimous U.S. Supreme Court on Tuesday held that a corporation's "principal place of business" for purposes of federal jurisdiction is its "nerve center," typically where its headquarters is located. . . . The Court, in an opinion by Justice Stephen Breyer, resolved a long-simmering debate among the federal circuits, which, for the past 51 years, have used a hodgepodge of tests to answer the jurisdictional question. . . . The ruling in Hertz Corp. v. Friend (pdf) will help to determine the battlefields on which class action and other litigation involving multistate corporations will be fought -- what corporations perceive to be the friendlier forum of the federal courts or state courts seen as more sympathetic to plaintiffs.

Justices Seem Receptive to First Amendment Challenge to Anti-Terror Law

Apart from Scalia, support for the government's position seemed weak

Tony Mauro, The National Law Journal

02-24-10 -- The U.S. Supreme Court appeared troubled on Tuesday by the broad sweep of a federal law that makes it a crime to give "material support" and "expert advice" to designated terrorist groups. . . . The law was challenged as a vague or overbroad violation of First Amendment rights. But what seemed to bother the justices most was the assertion by U.S. Solicitor General Elena Kagan that the law would bar a lawyer from writing an amicus curiae brief on behalf of such a group in U.S. courts. . . . Kagan defended the law as a "vital weapon in this nation's continuing struggle against international terrorism." When Justice Ruth Bader Ginsburg told her that "I am still having trouble with the line" between what kind of communications the law allows and forbids, Kagan said mere "discussion of ideas" is not barred. But what is prohibited, Kagan said, is "the provision of actual support -- services to the organization that the organization can use in its activities, both legal and illegal."

Court upholds police warning of suspect rights

James Vicini, Reuters

02-23-10 -- The Supreme Court ruled on Tuesday that police officers adequately warned a criminal suspect of his legal rights when they told him he had the right to speak to a lawyer before answering any questions. . . . By a 7-2 vote, the high court ruled the warning that police officers in Tampa, Florida gave to suspect Kevin Powell in 2004 sufficiently informed him that he could have an attorney's assistance during any later questioning. . . . One officer read Powell a statement that informed him, "You have the right to talk to a lawyer before answering any of our questions." Powell later was told he could invoke his rights "at any time you want during this interview." . . . Powell was convicted of illegally possessing a firearm. . . . The Florida Supreme Court overturned his conviction and ruled the warning was misleading because it suggested Powell could talk to an attorney only before the police started to question him and did not adequately convey that the lawyer could be present through the interrogation. . . . The U.S. Supreme Court, in a majority opinion written by Justice Ruth Bader Ginsburg, disagreed. She said the warning reasonably conveyed to Powell his right to have an attorney present at all times.

High Court Justices May Favor Clients Over Lawyers in Fee Shift Dispute

Marcia Coyle, The National Law Journal

02-23-10 -- A majority of the Supreme Court appeared sympathetic on Monday to the Obama administration's arguments that attorney fee awards under a key fee shifting statute belong to the clients, not the attorneys who earn them, and the awards can be offset to pay debts owed to the government. . . . In Astrue v. Ratliff, Assistant to the Solicitor General Anthony Yang and James Leach of Rapid City, S.D., sparred over what each claimed was the "plain meaning" of the Equal Access to Justice Act. The act awards attorney fees and expenses to "a prevailing party other than the United States" in any civil action against the government unless the court finds the government's position was "substantially justified" or an award would be unjust. . . . The government is urging the high court to overturn a ruling by the 8th U.S. Circuit Court of Appeals (pdf) which, counter to most courts that have ruled on the issue, held that the fee award belongs to the prevailing party's attorney and cannot be used to offset the client's government debts.

Courtroom Murder Shadows Chicago Gun Suit at Supreme Court

1983 shooting of judge, lawyer led to gun ban now before the justices

Tony Mauro, The National Law Journal

02-23-10 -- The landmark 2008 U.S. Supreme Court decision in D.C. v. Heller, declaring an individual right to bear arms under the Second Amendment, may soon be eclipsed by its sequel: McDonald v. City of Chicago, set for argument March 2. . . . Heller limited the right to the federal enclave of the District of Columbia. McDonald may be the case that makes the right real nationwide, by applying or incorporating the right as a shield against state and local restrictions on firearms as well. The key question before the Court will be which part of the 14th Amendment should be invoked in restricting the states: the due process clause, the privileges or immunities clause or none of the above. . . . A major segment of the case began, however, not with lofty constitutional quarrels but the long-ago murder of a lawyer and judge in a Chicago courtroom. It was Oct. 21, 1983, when wheelchair-bound Hutchie Moore, using a handgun he had hidden under a blanket, shot his ex-wife's divorce lawyer, James Piszczor, as well as the presiding judge in the Cook County Circuit Court, Henry Gentile, on the 16th floor of the Daley Center.

Supreme Court Rules Judge Need Not See Juror Demeanor to Rule on Batson Claim

By Debra Cassens Weiss, ABA Journal

02-22-10 -- The U.S. Supreme Court has ruled a trial judge does not need to observe a potential juror to decide a prosecutor’s claim that he used a peremptory strike to dismiss the woman because of her demeanor. . . . The defense had argued the prosecutor dismissed the potential juror because of her race. The opinion (PDF) in Thaler v. Haynes is one of two summary opinions issued today, bringing to eleven the number of summary decisions issued this term, SCOTUSblog reports. . . . Two judges presided at different stages of the case, the Supreme Court said in the per curiam decision. The prosecutor claimed he had dismissed the juror because her demeanor had been “somewhat humorous” and not “serious” and her “body language” had belied her “true feeling.” The second judge in the case rejected the defense lawyer’s claim that the true motive for the dismissal was because the potential juror was African-American.

Supreme Court returns, firearms regulation and detainees on agenda

By Robert Barnes, Washington Post Staff Writer

02-22-10 -- The Supreme Court returns from its midterm break Monday morning, one controversial decision behind it and the potential for more ahead. . . . The justices already might have defined this term with their January ruling that declared unconstitutional decades-old restrictions on the way corporations and unions may spend their money in the electoral process. In Citizens United v. Federal Election Commission, the court ruled 5 to 4 that keeping corporations from using their profits to support or oppose candidates violated the First Amendment. . . . The decision is controversial enough that Democrats in Congress already are preparing legislation that would blunt the effects of the change. Polls show that Americans overwhelmingly disagree with the decision, and President Obama denounced it and called for a legislative response in his State of the Union Address.

U.S. Supreme Court to hear terrorism case

By Harriet Robbins Ost, United Press International

02-21-10 -- The U.S. Supreme Court this week hears arguments on a provision of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 -- or as it is more familiarly known, the Patriot Act. . . . The Patriot Act was signed into law Oct. 26, 2001, in the wake of the Sept. 11 terrorist attacks. The act, read in conjunction with other federal anti-terrorism laws, presents what some consider a chilling effect on constitutional rights, including the First Amendment guarantees of the freedoms of speech and association. . . . The Supreme Court will decide whether the parts of the law that make it a crime to give "material support or resources" to government-designated foreign terrorist organizations are unconstitutional.

Is There Meaning in the Supreme Court’s Rate of Summary Reversals?

By Debra Cassens Weiss, ABA Journal

02-17-10 -- Court watchers are noting a higher rate of summary reversals by the U.S. Supreme Court and wondering about the motive. . . . The U.S. Supreme Court has already issued nine summary reversals this term, the same number issued for all of the previous term, according to a count by SCOTUSblog. The number this year is even more dramatic when compared to the 2007 term, when there were six summary reversals in total, and the 2006 term, when there were eight. . . . In a summary reversal, the Supreme Court grants cert and reverses the lower court, without briefing or argument, usually in an unsigned opinion, the blog explains. Summary reversals tend to be used to correct an error in a particular case, rather than to resolve circuit conflicts or establish general legal principles.

Poll: Large majority opposes Supreme Court's decision on campaign financing

By Dan Eggen, Washington Post Staff Writer

02-17-10 -- Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll. . . . Eight in 10 poll respondents say they oppose the high court's Jan. 21 decision to allow unfettered corporate political spending, with 65 percent "strongly" opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits. . . . The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent). . . . The results suggest a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court's decision. Likely proposals include banning participation in U.S. elections by government contractors, bank bailout recipients or companies with more than 20 percent foreign ownership.

Supreme Court Orders New Briefing in Uighur Case

Tony Mauro, The National Law Journal

02-16-10 -- The Supreme Court issued an order (pdf) Friday in Kiyemba v. Obama, asking both sides to address, in effect, whether the case involving Uighurs detained at Guantanamo Bay should be dismissed. . . . The case, which was set for argument March 23, is an important test of whether a federal judge can, as part of his habeas jurisdiction, order detainees brought into the United States for release, as Judge Ricardo Urbina did in 2008. The Obama administration, like the Bush administration before it, argued that only the political branches have the power to determine which aliens can be brought into the United States. The U.S. Court of Appeals for the D.C. Circuit agreed. . . . At the same time, the Obama administration sought,and has been successful, in finding new homes outside the United States for the seven Uighurs left at the base, who have been determined not to be enemy combatants. As New York Times columnist Linda Greenhouse wrote online Friday, the Court and the administration may be eager to avoid another detainee-related test of executive power.

January 2010

Specter Files Supreme Court Brief in Torture Case

Tony Mauro, The National Law Journal

01-28-10 -- Sen. Arlen Specter, D-Pa., filed a brief on behalf of himself and two other members of Congress on Wednesday in a closely watched human rights case testing whether foreign torture victims can seek damages in U.S. courts. The case, which will be argued at the Supreme Court on March 3, is Samantar v. Yousuf, a dispute over the meaning of the Torture Victim Protection Act of 1991, which Specter sponsored. . . . In passing the law, Specter asserted in the brief, Congress intended "to provide redress for egregious acts that infringe human rights and are an affront to human dignity." Joining Specter on the brief were Sen. Russ Feingold, D-Wis., and Rep. Sheila Jackson Lee, D-Texas. . . . Bashe Abdi Yousuf, a Somali businessman who was tortured and imprisoned under the Siad Barre regime in Somalia in the 1980s, invoked the law in suing Mohamed Samantar, former defense minister and prime minister of Somalia. Samantar fled Somalia in the early 1990s and now lives in Virginia.

Supreme Court Ends Confrontation Clause Case, Non-Orthogonally

Tony Mauro, The National Law Journal

01-26-10 -- During oral arguments Jan. 11 in Briscoe v. Virginia, Supreme Court Justice Antonin Scalia spent considerable time defending the precedent at issue, Melendez-Diaz v. Massachusetts, in which he wrote the majority opinion (pdf). That was the Confrontation Clause decision finding that forensic evidence needed to be presented in person, not by affidavit, so it could be tested in cross-examination. . . . Melendez-Diaz was decided just last June, so some wondered why the Court would review such a similar case. All eyes were on new Justice Sonia Sotomayor to see if she would have a different take on the issue. . . . On Monday, the Court decided to leave well enough alone and leave the precedent untouched, suggesting that Sotomayor may not have had anything different to say about the issue than her predecessor David Souter, who was in the 5-4 majority in Melendez-Diaz. The Court sent the Briscoe case back to Virginia courts for reassessment under the Melendez-Diaz case, which it could have done without hearing arguments in the first place.

NRA Granted Argument Time in Second Amendment Case at Supreme Court

Tony Mauro, The National Law Journal

01-26-10 -- The Supreme Court on Monday granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of Washington, D.C., and Virginia. The case is McDonald v. City of Chicago. . . . Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation.

Critics, Dissenters Predict Wave of Corporate Money After Campaign Finance Ruing

Tony Mauro, The National Law Journal

01-22-10 -- In a dramatic upheaval that sharply divided the U.S. Supreme Court, a 5-4 majority ruled Thursday that under the First Amendment Congress may not bar corporations and unions from using their own money to make independent expenditures to support or oppose candidates for office. . . . The Court in Citizens United v. Federal Election Commission (pdf) ruled that the ban on direct corporate expenditures before elections, with criminal penalties, is a powerful chill on legitimate political speech. "Its purpose and effect are to silence entities whose voices the government deems to be suspect," wrote Justice Anthony Kennedy for the majority. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." . . . By a separate 8-1 vote, however, the Court upheld disclosure requirements imposed on corporations to give the public information about the sources of the spending.

You can access the ruling at this link.

Judge Stevens Decries Court's Corporate Turn

89-year-old gives impassioned opinion but sounds weary

Kevin Spak, Newser -

01-22-10 -- Justice John Paul Stevens railed against the Supreme Court’s ruling overturning decades of campaign finance reform, invoking the names of such revered justices as Sandra Day O’Connor, Thurgood Marshall, and Byron White. In giving the minority opinion yesterday, Stevens spoke for 20 minutes, twice as long as Anthony Kennedy did for the majority, and spoke with considerably "more passion—and more weariness," writes Joan Biskupic at USA Today.

Supreme Court Strikes Down Bans on Corporate Spending in Elections

By Tony Mauro, The Blog of the Legal Times 

01-21-10 -- In a dramatic special session this morning, the U.S. Supreme Court by a 5-4 vote said that congressional restrictions on independent expenditures by corporations in federal elections violate the First Amendment. . . . Justice Anthony Kennedy announced the opinion in Citizens United v. Federal Election Commission, declaring that the ban on corporate expenditure “uses censorship to control thought” and amounts to a chill on “core political speech.” Click here for the opinion. . . . For more than 20 minutes, Justice John Paul Stevens read from his dissent, describing the majority opinion as “a radical change in the law.” Stevens said that long tradition and common sense justify treating corporations differently from individuals under the First Amendment. Stevens spoke haltingly and with emotion, summarizing his 90-page dissent. . . . Joining Stevens in dissent were Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Supreme Court Announces Special Sitting, Issues 3 Rulings

Tony Mauro, The National Law Journal

01-21-10 -- The long wait for the Supreme Court's ruling in Citizens United v. Federal Election Commission may soon be over. At the end of oral arguments Wednesday morning, the marshal of the Court announced the justices would return to the bench at 10 a.m. today -- a rare if not unprecedented Thursday session for the Court. Unless the Court really wants to pull a switcheroo on an anxious nation, the session will almost certainly be the platform for announcing the Citizens United decision on campaign finance regulation, which was argued in a special session Sept. 9 and appears to be the only pending case that would warrant such special arrangements. . . . Now that a Thursday session is planned, it's fair to ask: why not wait until Monday, when the Court was already scheduled to sit? It will be the third Monday of its argument cycle, when it will not be hearing arguments. One answer may point to possible multiple readings from the bench today. On third Mondays, when no arguments are scheduled, justices sometimes do not show up, having already packed their bags and headed off for travel during the period before the next session. If one or more of those justices had planned to read a dissent from the bench, they might have lobbied for a special sitting today before they left town. Justice John Paul Stevens, for example, may have already made plans to head to his Florida condo where he often spends his off-bench days. So Stevens may have a dissent to read -- or, perhaps, a majority opinion.

High Court Justices Underscore Importance of Open Criminal Trials

Tony Mauro, The National Law Journal

01-20-10 -- The U.S. Supreme Court on Tuesday strengthened the right to public criminal trials, ruling in a Georgia case that jury voir dire proceedings should be open to defendants and to the public. . . . In an unsigned 7-2 ruling in Presley v. Georgia (pdf), the high court also said that a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in the courtroom that there are not enough seats for the public. . . . "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the Court majority stated. "The public has the right to be present whether or not any party has asserted the right."

Supreme Court Ducks Asian Carp Issue, Rules on Open Courts

Tony Mauro, The National Law Journal

01-19-10 -- The Supreme Court on Tuesday morning issued no signed opinions and granted review in no new cases, but still made news on issues ranging from the Great Lakes dispute over the invasion of Asian carp to the requirement that jury voir dire proceedings be open to the public. . . . The Court also kept alive the long-running appeal of Mumia Abu-Jamal, the Philadelphia man convicted of killing a police officer. The Court sent his case back to the 3rd U.S. Circuit Court of Appeals, instructing it to consider his appeal in light of the high court's recent ruling in Smith v. Spisak. In this story last fall, colleague Shannon Duffy from The Legal Intelligencer in Philadelphia explained the parallels between the Abu-Jamal and Spisak cases.

Supreme Court Takes Up Case on Petition-Signer Privacy

Tony Mauro, The National Law Journal

01-19-10 -- For the second time in a week, the Supreme Court on Friday grappled with the Internet-age clash between public disclosure and privacy in the context of anti-gay rights ballot initiatives. . . . The Court on Friday afternoon announced it was granting review in five new cases, including Doe#1 v. Reed, a case from Washington state asking whether that state's public records disclosure law violates the privacy rights of voters who signed petitions to launch a referendum aimed at overturning a law allowing same-sex domestic partnerships. Sponsors of the ballot initiative went to court to keep the names from being posted on the Internet, claiming that would violate their right to anonymous speech and would subject signers to threats and harassment.

Something's Fishy at the High Court

Tony Mauro, The National Law Journal

01-19-10 -- When the litigation over the invasion of Asian carp into the Great Lakes burst into the news this month, you may have wondered: How did it get to the Supreme Court so fast? . . . The answer is that Michigan, in its effort to keep the carp from overtaking Lake Michigan, used as its vehicle three original-jurisdiction Supreme Court cases dating back to 1922. . . . In that year, states surrounding the Great Lakes sued the state of Illinois and the Metropolitan Sanitary District of Chicago to halt the diversion of Great Lakes water by Chicago to flush its sewage into the Mississippi River.

Supreme Court Extends Stay That Blocked Broadcast of Proposition 8 Trial

Majority of justices accept claim that broadcast could result in witness harassment and intimidation

Tony Mauro, The National Law Journal

01-14-10 -- By a 5-4 vote, the Supreme Court on Wednesday stayed or halted plans to transmit the video and audio of the high-profile federal trial on California's ban on same-sex marriage to other courthouses around the country. . . . The ruling (pdf) effectively means that the San Francisco trial, which began on Monday, is likely to end before any further consideration of the courthouse dissemination plan -- or any wider broadcast by posting the trial video on the Internet -- can take place. The ruling extends a temporary stay it granted on Monday just an hour before the trial began. . . . U.S. District Judge Vaughn Walker, who is presiding over the trial on the validity of Proposition 8, which banned same-sex marriage in California in 2008, had planned to post the video on the court's Web site and on YouTube. In recent days the plan was seemingly scaled back to allow only for broadcast to courthouses in San Francisco, Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y., to accommodate wide public interest in the trial. Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, who in December launched a pilot program to experiment with broadcast access -- a program that enabled Walker to proceed with his plans -- said that because of technical issues, the broader plan for posting the trial proceedings on the Internet was not "ripe for approval."

High Court Struggles With Child Custody, Sex Offender Cases

Marcia Coyle, The National Law Journal

01-13-10 -- In two starkly different challenges Tuesday, the U.S. Supreme Court vigorously questioned the federal government's power to detain sexually dangerous prisoners beyond their federal prison sentences and appeared sympathetic to arguments that a treaty requires a divorced American mother to return her child to Chile. . . . In U.S. v. Comstock, Solicitor General Elena Kagan defended the section in the 2006 Adam Walsh Child Protection and Safety Act that authorizes the federal government to detain by civil commitment any "sexually dangerous" federal prisoner even after he or she has served the sentence for the underlying crime. . . . The 4th U.S. Circuit Court of Appeals last January ruled in the case of five prisoners that neither the Constitution's commerce clause nor the necessary and proper clause authorized Congress to enact the civil-commitment provision. The provision, it said, also interfered with a power reserved to the states.

Justices Hear Case on Releasing Sex Offenders

The Associated Press, Law.com

01-12-10 -- The idea of the federal government being able to indefinitely commit people considered "sexually dangerous" after their federal prison terms are complete seemed attractive to some Supreme Court justices. . . . Lower courts have said the federal government cannot do this. But in arguments before the high court Tuesday, Solicitor General Elena Kagan said the government has the responsibility to ensure that sexual predators are not turned back onto the streets. . . . The federal government's responsibility and power extends to ensuring "those people who have been in custody are released responsibly," Kagan said. . . . Federal public defender G. Alan DuBois said this practice would overstep official bounds when it comes to sentencing people for federal crimes. "Civil commitment has never been part of the criminal justice system," he said.

High Court Justices Grill Both Sides in Confrontation Clause Case

Tony Mauro, The National Law Journal

01-12-10 -- The U.S. Supreme Court's decision last year in Melendez-Diaz v. Massachusetts caused an uproar among prosecutors by interpreting the Constitution to require that forensic and other evidence be presented mainly in person, not by affidavit. . . . On Monday, the Court heard arguments in a case that could be a vehicle for reversing that 5-4 decision (pdf) less than a year after its issuance. But that outcome appears far from certain. . . . Justice Sonia Sotomayor, who was not on the Court for the Melendez-Diaz case, sent out mixed signals on whether she would provide the vote needed for reversal. (Her predecessor David Souter was in the majority.) As has become her custom, Sotomayor actively questioned both sides during Monday's argument in Briscoe v. Virginia.

Supreme Court Drops Undecided Prosecutorial Immunity Case After Parties Settle

Tony Mauro, The National Law Journal

01-05-10 -- The U.S. Supreme Court announced late Monday that it had dismissed an important pending case over prosecutorial immunity after being alerted that the dispute had been settled. The action stops in its tracks a case that could have produced a landmark decision that many believed would have reined in the longstanding tradition that prosecutors cannot be held liable for their actions as prosecutors. . . . The case, Pottawattamie County v. McGhee and Harrington, was brought by Curtis McGhee Jr. and Terry Harrington, who had been found guilty in the 1977 murder of John Schweer, a retired police officer in Council Bluffs, Iowa. The two, who spent 25 years in prison before being freed in 2003, sued Iowa prosecutors for violating their civil rights by falsifying evidence used against them before arrest and at trial. They were released after being able to document the actions taken by prosecutors to doctor evidence and influence testimony to point the finger at them, even though there was another suspect.

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