United States Supreme Court (Spring 2007) News & Views

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by: Nancy Salvato

SCOTUS News & Views Spring 2007
(Fall 2006 Session)

August 2007

Fair Pay, the Right Way

The House overcorrects a Supreme Court decision.

Washington Post Editorial

8-15-07 -- BEFORE LEAVING for its August recess, the House of Representatives approved legislation to blunt the impact of a Supreme Court ruling that severely constricted the opportunity for workers to seek redress in court for pay discrimination. The legislation is needed, but the House included provisions that could unnecessarily burden employers. These problems should be addressed in the Senate, where a companion bill has been filed. . . . The legislation is a reaction to the Supreme Court's decision in Ledbetter v. Goodyear, in which it ruled that workers must file pay discrimination grievances with the Equal Employment Opportunity Commission within 180 days of an employer's discriminatory pay decision. The ruling, while a defensible reading of the law, is impractical. How is a worker to know -- essentially at the moment her employer makes a pay decision -- that she's unfairly being paid less than her male counterparts? Employers jealously guard pay information, and credible specifics about who's being paid what are rarely the subject of lunchroom chit-chat.

The Supreme Court Wreaks Havoc in the
Lower Federal Courts--Again
By Michael C. Dorf

8-13-07 -- Here's a pop quiz. Can you name the most important Supreme Court decision of the last Term? Was it Gonzales v. Carhart, the ruling upholding the federal Partial Birth Abortion Act? Or how about Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated the voluntary use of race by public school boards in Kentucky and Washington? . . . Not even close, at least by one important measure: How many times has the ruling been cited by the lower federal courts? According to my WestLaw research at the end of last week, the partial-birth abortion case had been cited eleven times since it was decided in April, and the schools case had been cited just twice since it was decided in late June. . . . In contrast, the hands-down winner for most-cited was Bell Atlantic Corp. v. Twombly. Since the case was decided in late May, it has been cited by the lower federal courts a whopping 457 times. Indeed, it has been cited almost 300 times in July and August alone. . . . If you've never heard of the Twombly ruling, that's probably because you don't litigate in the federal courts. And therein lies the rub: The Twombly case, as I explain in this column, concerns the standard to be used by federal district judges in deciding whether to dismiss a lawsuit before allowing the plaintiff to conduct civil discovery (interrogatories, depositions, document requests and the like). It is fundamentally about what we might call "lawyer's law." However, the case was produced by a Supreme Court whose Justices have had very little experience as trial lawyers, and no experience at all as trial court judges. Unfortunately, here and elsewhere, that lack of experience sometimes shows.

July 2007

Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court

Tony Mauro, Legal Times

7-30-07 -- The case of District of Columbia v. Heller is barely at the Supreme Court's starting gate, yet nearly everyone involved has a growing sense that this will be the Big One. . . . It is shaping up as the case that finally forces the Court to decide one of the most keenly debated issues in constitutional law: the full meaning of the right to keep and bear arms declared by the Second Amendment. . . . Washington, D.C., Mayor Adrian Fenty is appealing a March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit that struck down the city's handgun ban on Second Amendment grounds. The Court has given the city until Sept. 5 to file, and the other side -- residents who want the ban overturned -- say they too want high court review. If the Court accepts, the case could be argued early next year. . . . But even as the case heats up, factions on both sides seem to be getting cold feet. The concern is that even after nearly 70 years of high court silence, the time might not be right for it to speak to the Second Amendment question.

Gun Owners Urge Court To Move Case Along

Posted by Lyle Denniston

7-20-07 -- Washington, D.C., residents who oppose the city's strict handgun control law urged the Supreme Court on Wednesday to move along, without delay, the city government's appeal of a federal appeals court striking down that law under the Second Amendment. Invoking the half-century old admonitions of the late Justice Felix Frankfurter, the local citizens told the Court that it should not be difficult for city lawyers to promptly prepare their petition for review. The document can be found here. . . . The challengers to the local law told the Court that they"look forward" to supporting Supreme Court review of the case, but argued that the city's appeal papers should be filed, as now scheduled, "no later than Aug. 6." . . . The city on Monday asked Chief Justice John G. Roberts, Jr., for a 30-day extension of the time to file the city's petition in the case of District of Columbia, et al., v. Heller, et al. (extension application 07A51). The city argued that it had taken on additional attorneys who needed to become familiar with the issues, and that city officials had only recently decide actually to appeal the case.

Assault on Second Amendment

Terence P. Jeffrey

7-20-07 -- A useful illustration of how American freedom could fade away can be seen in a contrast between the city government of Newton, Mass., in 1775, and the city government of Washington, D.C., in 2007. . . . On Jan. 2, 1775, as historian David Hackett Fischer recounts in "Paul Revere's Ride," the good people of Newton held a town meeting. The issues they discussed were similar in a certain sort of way to the issues that might be discussed today by the D.C. Council. They included a proposed gun law and entitlement program. . . . In Newton, the gun law and entitlement program were one and the same. The Newtonians thought it so important for every man in town to own a gun that they were ready to give him one if he could not afford it. "Voted," say the town records, "that the Selectmen use their best discretion in providing firearms for the poor of the town who are unable to provide for themselves." . . . D.C. Mayor Adrian Fenty does not see guns the way our Founders did. In his view, they are not tools for defending individual liberty, they are instruments of criminality. . . . This week, Mr. Fenty announced the District would appeal to the Supreme Court a March U.S. Court of Appeals for the District of Columbia decision that ruled a District gun law unconstitutional. The law flatly bans possession of a handgun — even in one's own home — unless the gun was registered before 1976. "Wherever I go, the response from the residents is, 'Mayor Fenty, you've got to fight this all the way to the Supreme Court,"' said Mr. Fenty.

City To Battle at High Court Over Special Education

By Joseph Goldstein, Staff Reporter of the Sun

7-20-07 -- The federal government is siding against New York City in a case before the U.S. Supreme Court that parents of children with disabilities are watching closely. . . . The case is likely to set standards for when localities must reimburse parents for private school tuition for students with a range of disabilities. The New York City Department of Education says it must only pay for private school if, after a child is first placed in a public school special education program, the school is unable to meet the needs of the child. The city claims that any other policy will require it to pay for the bias many parents have toward an expensive private education. . . . But the U.S. solicitor general, Paul Clement, argues that the city's policy denies some children immediate access to an appropriate education. In a brief filed to the federal high court this week, the solicitor general's office claims that the city is responsible for funding a private education for students the school system is unable to serve even when the child has never spent a day in public school. . . . The case, which will be argued before the U.S. Supreme Court this fall, is the second this year in which the Justice Department has opposed the city. The city won the first case, which involved local property taxes the city had assessed against foreign governments.

High Court's New Rules Address Critics' Privacy Concerns

Tony Mauro, Legal Times 

7-18-07 -- The Supreme Court appears to have backed away from a controversial proposed rule change that critics said would have threatened the privacy of groups that file amicus curiae or friend-of-the-court briefs with the justices. Following a public comment period that apparently led the justices to reconsider their proposal, the Court on Tuesday issued new rules that will take effect Oct. 1. . . . The original proposal would have had the effect of requiring amicus filers to disclose if parties or their counsel were members of the amicus group or had helped finance the brief. The aim was to prevent parties to get two bites at the apple -- one, a brief filed by the party itself and the second, a brief filed by an amicus group but written or financed by the party. But amicus groups across the spectrum protested that the rule would invade the cherished privacy of their membership rosters. Former members of the solicitor general's office also protested that the rule as written originally would have required government lawyers to reveal, for example, whether they paid dues to the American Civil Liberties Union or the National Rifle Association.

The Supreme Court Fails Semantics

7-11-07 -- One of the skills expected of judges is the ability to understand specialized legal language; this they are trained to do in law school. It also falls to judges to interpret ordinary language. In this they receive no special training, and, from time to time, fail. The recent US Supreme Court decision in Morse v. Frederick is a case in point. . . . The case concerns an incident that occurred when students at a high school in Alaska were let out of school to observe the Olympic Torch Relay. A group of students, among them Joseph Frederick, held up a banner with the words "BONG HiTS 4 JESUS". When the principal, Deborah Morse, demanded that they take it down, Frederick refused. As a result he was suspended. . . . The case raises a number of issues about the free speech rights of high school students that have been the subject of extensive commentary and debate elsewhere. An issue that has not been adequately addressed is what Frederick said that justified punishment. The Supreme Court majority is of the view that the school had the right to punish Frederick for the slogan because it encourages the use of drugs, which it is the policy of the school to discourage. Here is Chief Justice Roberts' majority opinion, in which he was joined by Associate Justices Alito, Kennedy, Scalia, and Thomas, on this point: . . . The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner's words - that they constitute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use - demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. . . . Associate Justice Thomas does not address this issue in his concurring opinion, which is devoted primarily to his view that high school students have no free speech rights and that Tinker should be overturned. Associate Justice Alito in his concurring opinion explicitly limits the school's power to forbidding advocacy of illegal drug use, stating that advocacy of the legalization of the use of marijuana, for example, would fall within the student's First Amendment rights.

Detainee Lawyers' Constitutional Wrongs

By Alan Nathan, FrontPageMagazine.com

7-11-07 -- You cannot execute a battle as you might an indictment nor prosecute a war as you might a trial. The Framers of the Constitution knew this when they wrote in Article I, Section 9 that Congress had the right to suspend habeas corpus, “when in cases of rebellion or invasion the public safety may require it.” So why is the Supreme Court allowing Guantanamo Bay prisoners to argue that they’re entitled to challenge their incarcerations in our federal courts? . . . More importantly, why is the court violating the separation of powers by endeavoring to adjudicate that which is not within their jurisdiction, and is therefore something in which they have no standing? . . . The Supreme Court in Hamden v Rumsfeld last year found that Congress’ suspension of habeas corpus in the Detainee Treatment Act of 2005, could not retroactively apply to Osama bin Laden’s aid/driver, Salim Ahmed Hamden. To that extent the court was right because ex post-facto laws are unconstitutional. . . . However, any detainees caught after that effective date are impenetrably insulated from the Supreme Court. Why? Because the justices can’t rule that the Constitution is in opposition to its own text. Idiots!

Who's behind the integration decision?

It's the Pacific Legal Foundation, champion of right-wing causes for 35 years.

By Mark Tushnet

7-9-07 -- THE SEATTLE school integration case decided by the Supreme Court last month was brought in the name of a group called Parents Involved in Community Schools on behalf of Jill Kurfirst and her ninth-grade son. But it was a little-known, Sacramento-based organization called the Pacific Legal Foundation — a conservative public interest law firm involved in the case from the beginning — that developed many of the legal arguments five justices ultimately found persuasive. . . . Where did the foundation come from? The story begins with former Justice Lewis F. Powell. Shortly before he was nominated to the court in 1971, Powell, then a Virginia lawyer, wrote a memo to a friend at the U.S. Chamber of Commerce titled "Attack on the American Free Enterprise System." In it, Powell worried that liberal groups had nurtured specialist lawyers and developed litigation strategies to defend government regulation. Businesses, he argued, were suffering because they had a "disposition to appease" and weren't able to present a countervailing view of what constituted the public interest.

High Court Reveals a Mind for Business

In a term marked by 5-4 rulings, no one proved to be a better friend to corporate America than Alito

Tony Mauro, Legal Times

7-2-07 -- For years, if not decades, leading U.S. Chamber of Commerce lawyer Robin Conrad has told anyone who will listen that a conservative Supreme Court is not always a pro-business Supreme Court. . . . For example, conservative Justices Antonin Scalia and Clarence Thomas have never been able to find, in their copies of the Constitution, any basis for limiting high punitive damage awards that are the bane of the business community. . . . But now, at the end of a course-changing, gut-wrenching Supreme Court term littered with heated 5-4 decisions, one bit of clarity is shining through: the Roberts Court, and especially its newest member, Samuel Alito Jr., are both very conservative and very pro-business -- more so than any Supreme Court in decades. . . . "We've been representing the business community before the Supreme Court for 30 years," Conrad says, "and this is our strongest showing since the inception" of the National Chamber Litigation Center, the chamber's litigation arm, where Conrad is executive vice president. She counts 13 wins in the 16 cases in which the center filed briefs on the merits.

Free Speech From The Mouths Of Babes

by Selwyn Duke, NewsWithViews.com

7-2-07 -- The Supreme court handed down three free speech rulings that find favor with conservatives. One of them is Morse et al. v. Frederick, a case involving the free speech rights of students. At issue is a five year old incident wherein a Juneau-Douglas High School senior named Joe Frederick raised a 14-foot banner stating "Bong Hits 4 Jesus" and was subsequently suspended for "drug speech" by then school principal Deborah Morse. Writing for the majority in a five to four decision in favor of the school, Chief Justice John Roberts reasoned that the First Amendment should not be applied in this case because the student was encouraging drug use. . . . While I agree with the principal's actions and take solace in the knowledge that educators' hands won't be further tied, the Supreme Court's ruling does nothing to address what is the underlying problem. In fact, with the convoluted logic displayed by virtually all members of the court, it's hard to find much to applaud in this judgement. . . . The real issue here extends far beyond this one case and harks back to a precedent set in 1969 in the Tinker v. Des Moines ruling, which divined from the Constitution a right to free speech in schools. Upon issuance of that decision the court stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." . . . Really? What can hardly be argued is that the donning of a black robe confers intelligence, wisdom or even much useful knowledge upon the wearer. . . . The truth here can be found in one of the few bright spots in this case. Writing in his concurrence, Justice Clarence Thomas drove to the heart of the matter in saying, ". . . it cannot seriously be suggested that the First Amendment 'freedom of speech' encompasses a student's right to speak in public schools."

June 2007

Supreme Court Overturns 'Dr. Miles' Antitrust Precedent

Breyer reads dissent from bench, predicts rise in price of goods at retail

Tony Mauro, Legal Times

6-29-07 -- Dr. Miles is dead. . . . The Supreme Court on Thursday overturned a 1911 precedent -- known by law students everywhere as the Dr. Miles rule -- under which minimum retail prices established by manufacturers were deemed to be an automatic or per se violation of the Sherman Antitrust Act. . . . Citing modern-day market realities and economic theory, Justice Anthony Kennedy wrote for the 5-4 majority that the per se rule was of "slight relevance" and no longer valid. . . . Instead, he said, "Vertical price restraints are to be judged according to a rule of reason." The ruling was Leegin Creative Leather Products v. PSKS Inc. . . . Justice Stephen Breyer led the dissenters and recited excerpts from the bench, lamenting the Court’s cavalier treatment of a long-obeyed precedent. If Dr. Miles could fall, Breyer suggested that the long-standing antitrust exemption granted to Major League Baseball could be at risk. Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg joined Stevens.

Ending Term, High Court Strikes Down Race-Based School Programs

In key separate opinion, Kennedy says race can be a consideration in limited instances

Tony Mauro, Legal Times 

6-29-07 -- In a historic final day of the Supreme Court term Thursday, the justices by a 5-4 vote struck down plans in Seattle and Louisville, Ky., that used race as a factor in making public school assignments. . . . With both sides invoking the landmark case Brown v. Board of Education -- either to attack consideration of race by public schools or to support it -- the decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education represented a major doctrinal shift that can be traced to the Court's new members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. . . . "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," declared Roberts in an opinion stating his views and those of Justices Alito, Antonin Scalia and Clarence Thomas, the Court's only African-American member.

Supreme Court Blocks Execution of Mentally Ill Killer in Texas

Pete Yost, The Associated Press 

6-29-07 -- A divided Supreme Court on Thursday blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill. . . . The Court ruled 5-4 in the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in front of his wife and young daughter. . . . The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. "This argument, we hold, should have been considered," said Justice Anthony Kennedy, who wrote the majority opinion. . . . Panetti's lawyers wanted the Court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

Even in Agreement, Scalia Puts Roberts to Lash

By Linda Greenhouse

6-27-07 -- It’s not every day that one Supreme Court justice, even one as rhetorically unrestrained as Justice Antonin Scalia, characterizes another justice, let alone the chief justice of the United States, as a wimp and a hypocrite. . . . Yet Justice Scalia did something very close to that, not once but twice, in separate opinions on Monday. As a result, he has served to lift the curtain a bit on the differences within the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so. . . . In the campaign finance case, he accused Chief Justice John G. Roberts Jr. of “faux judicial modesty” for writing an opinion that in Justice Scalia’s view effectively overturned the court’s 2003 campaign finance decision “without saying so.” The clear implication was that the chief justice lacked the courage or honesty to overturn the precedent openly as Justice Scalia himself would have done. . . . “This faux judicial restraint is judicial obfuscation,” he said. . . . And Justice Scalia was scathing in his criticism of an opinion signed by Chief Justice Roberts that limited, but did not completely abolish, the right of taxpayers to go to court to challenge government expenditures that promote religion. Justice Scalia would have gone on to shut the courthouse door completely, not simply limiting but overturning the precedent that the new ruling invoked.

Commentary: The assault on "faux judicial restraint"

Commentary Lyle Denniston

6-27-07 -- Now and then, a footnote in a Supreme Court opinion is so provocative, so perceptive, or both, that it speaks almost as loudly as the body of the opinions themselves. In the election campaign ads ruling on Monday, Justice Antonin Scalia unleashes this broadside at the main opinion, written by Chief Justice John G. Roberts, Jr.: . . . "[T]he principal opinion's attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation." . . . Aside from the substance of the remark, it is especially noteworthy because it is a direct assault on the version of judicial modesty that seems to be -- at least at this early stage of the "Roberts Court" -- the decision-making style that the new Chief Justice has so often advocated publicly. (Perhaps also to be left aside is that Justice Scalia himself joined earlier in the Term in a ruling by the Court, in the partial-birth abortion decision -- Gonzales v. Carhart -- that can be read as having overruled precedent without saying so.)

In 5-4 Vote, Supreme Court Rejects Election Ad Restrictions

Tony Mauro, Legal Times

6-26-07 -- The Supreme Court on Monday seriously weakened a key feature of the McCain-Feingold campaign finance law, possibly ushering in a new era of high court disapproval of measures aimed at reining in campaign excesses. . . . "Enough is enough," Chief Justice John Roberts Jr. wrote, referring to the expansion of government restriction on campaign speech that should be protected by the First Amendment. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." . . . By a 5-4 vote, the Court said that the 2003 law's ban on pre-election ads that mention candidates by name and are paid for directly by corporations and unions was unconstitutional -- at least as it was applied to the advertisements at issue in the case before it. The ban applied during the 30 days before a primary and the 60 days before a general election. . . . Roberts devised a new standard that would allow such ads to be banned only if the ad is "susceptible of no other interpretation than as an appeal to vote for or against a specific candidate."

Supreme Court Limits Student Speech in 'Bong Hits 4 Jesus' Case

Mark Sherman, The Associated Press 

6-26-07 -- The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner. . . . Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the Court in a 5-4 ruling. . . . Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City. . . . Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all. . . . His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

Justices Quash Suit Over Funds For Faith Groups

By William Branigin, Washington Post Staff Writer

6-26-07 -- The Supreme Court ruled yesterday that federal taxpayers cannot challenge the constitutionality of White House efforts to help religious groups obtain government funding for their social programs, handing a victory to President Bush's faith-based initiatives program. . . . In a 5 to 4 decision, the court blocked a lawsuit by a Wisconsin-based group of atheists and agnostics against the White House Office of Faith-Based and Community Initiatives. The court ruled that the suit, by the Freedom From Religion Foundation and three of its taxpaying members, could not go forward because ordinary taxpayers lack legal standing to challenge executive branch expenditures. The ruling reversed a January 2006 decision in favor of the foundation by the U.S. Court of Appeals for the 7th Circuit.

Supreme Court Refuses Tenn. Custody Case

By Woody Baird, Associated Press Writer

6-26-07 -- The U.S. Supreme Court refused Monday to get involved in a custody fight over an 8-year-old girl whose Chinese parents have been trying for seven years to get her back from temporary foster care. . . . Without comment, the high court rejected a request to review a Tennessee Supreme Court ruling that Anna Mae He must be returned to birth parents Shaoqiang and Qin Luo He. . . . "This is wonderful news for my family," Shaoqiang He said of the high court decision. . . . Hes, Chinese nationals who came to Memphis so Shaoqiang He could attend college, put their daughter in the home of an American couple, because of financial hardships, when she was a month old under a private foster care arrangement.

Supreme Court reviews FDA protection

The Supreme Court yesterday agreed to consider whether federal regulatory approval of medical devices shields manufacturers from most product liability lawsuits in state courts.

Associated Press

6-26-07 -- The decision could upend a growing consensus in the federal appeals courts that the Food and Drug Administration's regulation of the devices -- particularly the agency's stringent pre-marketing approval process -- generally does protect the companies from lawsuits. . . . The justices ignored the advice of the Bush administration, which agreed with a federal appeals court and recommended last month the court turn down the case. The Clinton administration had taken the opposite position -- that liability lawsuits could proceed -- in a similar case nine years ago.

Court will hear Louisiana death case

6-26-07 -- (AP) The Supreme Court agreed Monday to review whether race played a role in the selection of an all-white jury that imposed a death sentence on a black man in Louisiana. . . . Allen Snyder was convicted in 1996 of stabbing his estranged wife 15 times and killing a man with whom she was talking. . . . The Louisiana Supreme Court ruled that race had no part in the prosecutor's decisions involving black potential jurors. . . . Dissenting justices said the prosecutor's prejudice was shown by two comparisons he made between Snyder's case and that of O.J. Simpson, who had been acquitted in 1995 of killing his ex-wife and a friend of hers. . . . The U.S. high court had previously ordered the state court to take another look at the case, following a decision overturned a black Texas man's murder conviction and death sentence because prosecutors struck nearly all African-Americans from the jury.

High Court to Hear Internet Cigarette Fight

The Associated Press

6-26-07 -- The Supreme Court on Monday agreed to consider reinstating Maine's law aimed at regulating Internet sales of cigarettes to keep them out of the hands of minors. . . . Trade associations for delivery companies successfully argued in an appeals court that a federal statute supporting the free flow of interstate commerce pre-empted the Maine law. . . . The Maine attorney general, who asked the Supeme Court to hear the case, argues that states should be allowed to exercise their historic public health police powers to stop delivery of tobacco to children. . . . To comply with the state law, carriers must specially inspect every package containing tobacco and destined for delivery in Maine.

High Court Raises the Bar for Investors Alleging Securities Fraud

Tony Mauro, Legal Times 

6-22-07 --The Supreme Court on Thursday made it easier for corporate defendants to seek and win dismissal of lawsuits filed by investors alleging stock fraud or market manipulation. . . . By an 8-1 majority, the Court raised the threshold that plaintiffs must cross in initial pleadings to show that defendants had the intention to deceive or defraud. . . . Justice Ruth Bader Ginsburg, writing for the majority in Tellabs v. Makor Issues & Rights, said the plaintiffs' inferences about the defendant's knowledge of wrongdoing must be "cogent, and at least as compelling as any opposing inference of non-fraudulent intent." The Court rejected a more lax standard, which required only that plaintiffs allege facts from which "a reasonable person" could infer fraudulent intent.

Supreme Court Sets Rules for 'Reasonable' Prison Sentences

Mark Sherman, The Associated Press 

6-22-07 --The Supreme Court made it harder Thursday for most defendants to challenge their federal prison sentences. . . . Appeals courts that review prison terms imposed by trial judges may deem them reasonable if they fall within federal sentencing guidelines adopted in the mid-1980s, the high court said. . . . The justices upheld a 33-month sentence given to Victor Rita for perjury and making false statements. Rita is a 25-year military veteran and former civilian federal employee. . . . The prison term falls within the guidelines range and was upheld by the 4th U.S. Circuit Court of Appeals, posing the question of whether sentences within the guidelines ordinarily will be considered reasonable. . . . The vast majority of federal prison sentences fall within the guidelines.

Supreme Court Upholds Limits on High School Sports Recruiting

Mark Sherman, The Associated Press

6-22-07 --The Supreme Court said Thursday that athletic associations can enforce limits on recruiting high school athletes without violating coaches' free speech rights. . . . The high court ruled in a longstanding dispute between a Tennessee athletic association and a football powerhouse, the private Brentwood Academy near Nashville. . . . The school challenged a rule of the Tennessee Secondary School Athletic Association, which governs high school sports in the state. The association bars schools from contacting prospective students about their sports programs. . . . In a unanimous ruling, the Court said that "hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams and foster an environment in which athletics are prized more highly than academics." . . . Games have rules, Justice John Paul Stevens said for the Court. "It is only fair that Brentwood follow them," Stevens said.

Court Hands High School A Loss In Recruiting Case

By Robert Barnes , The Washington Post

6-22-07 --The Supreme Court decided unanimously Thursday that a state high school athletic association may restrict its member schools from contacting potential student athletes. . . . The decision capped a 10-year, multimillion-dollar legal battle between the Tennessee Secondary School Athletic Association and athletic powerhouse Brentwood Academy, a private school near Nashville that boasted the state's most successful football coach. . . . The association found Brentwood coach Carlton Flatt violated its rules by contacting some eighth-graders about spring practice, even though the boys had already said they were going to attend Brentwood. The school argued that was a violation of Flatt's First Amendment rights.

Supreme Court Grants Banks Broad Implied Immunity From Antitrust Lawsuits

Tony Mauro, Legal Times 

6-20-07 -- In a big win for the securities industry, the Supreme Court on Monday sided with Credit Suisse and other investment banks and dismissed an antitrust class action filed by IPO investors. . . . By a 7-1 vote in Credit Suisse Securities v. Billing, the Court gave the banks broad implied immunity from antitrust lawsuits, ruling that antitrust laws do not apply to the syndication and marketing techniques used in initial public offerings. The Court justified its conclusion in part on the grounds that the Securities and Exchange Commission is better qualified than judges and juries in antitrust cases to determine the legality of conduct in the complex field of initial offerings. . . . "Antitrust courts are likely to make unusually serious mistakes," Justice Stephen Breyer wrote for the majority, repeatedly expressing distrust for judges and juries. Speaking about the complex line-drawing that is involved in determining which conduct by underwriters is illegal, Breyer asked, "Who but the SEC could do so with confidence?" . . . Breyer's strong deference to the SEC in Monday's case could mark a new high-water mark for the regulatory state that could be applied in other contexts, including telecommunications and environmental law, where it could be argued that regulators have more expertise than courts.

Court: Passenger can challenge traffic stop

By James Vicini

6-20-07 -- (Reuters) - A passenger in a car pulled over for a traffic violation can challenge the stop for violating the constitutional protection against unreasonable searches and seizures, the U.S. Supreme Court ruled unanimously on Monday. . . . The justices held that the California Supreme Court was wrong in ruling that any constitutional violations when a police officer illegally stops a vehicle may be challenged only by the driver. . . . The high court's opinion written by Justice David Souter said the passenger in such cases can be considered "seized," basically unable to leave the scene when the police make the traffic stop, and can also challenge the stop. . . . Steven Shapiro of the American Civil Liberties Union applauded the ruling for recognizing that the average passenger does not feel free to leave when police pull over a car.

Supreme Court Turns Down State Tax Cases

Christoper S. Rugaber, The Associated Press

6-20-07 -- The Supreme Court on Monday declined to consider two cases that center on the issue of when states can tax companies outside their borders, disappointing many business groups that wanted the Court to limit the ability of states to do so. . . . The justices, without comment, let stand rulings by state courts in West Virginia and New Jersey that allowed those states to levy income and franchise taxes on companies that do not have a physical presence in the states, such as employees, stores or an office. . . . Previous Supreme Court rulings have held that a state can only levy sales and use taxes against companies that have a physical presence in the state. Several business groups argued in court filings that the "physical presence rule" extends to income and franchise taxes as well. . . . In 2006, however, the West Virginia Supreme Court of Appeals ruled that the state could levy income taxes on MBNA America Bank, a credit-card issuer based in Delaware, because the company earned substantial revenue from customers in the state. MBNA was later purchased by Bank of America Corp. in 2006.

Beware of the Judge

The Supreme Court's doctrine of tough luck

Washington Post Editorial

6-18-07 --KEITH BOWLES was convicted of murder in an Ohio state court and sentenced to 15 years to life in prison. As was his right, Mr. Bowles challenged his conviction in federal court. He lost, though the judge and the clerk in the case didn't let him know before the deadline for appealing. When he learned of the ruling, Mr. Bowles asked for extra time. The judge agreed -- and gave Mr. Bowles 17 days. Mr. Bowles filed his notice of appeal 16 days later. Trouble was, despite the judge's instructions, the law that sets out the time frame for such actions provides for only a 14-day extension. On Thursday, the Supreme Court, splitting 5 to 4, threw out Mr. Bowles's claim, ruling that even though he had complied with the judge's order, he was still too late. . . . This may not be the most momentous legal issue of the term -- unless, of course, you are Mr. Bowles -- but it is a sad example of miserly jurisprudence. The majority opinion, by Justice Clarence Thomas, insisted that the court was left with no choice but to dismiss the case; these time limits, Justice Thomas said, are "jurisdictional," and failing to comply with them, for whatever reason, divests courts of the ability to hear the claim. In less legalistic language: tough luck.

Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide

Tony Mauro, Legal Times 

6-15-07 -- The case of Bowles v. Russell did not generate headlines at any point in its journey to the Supreme Court. And when it was decided by the high court Thursday, no justice spoke in angry dissent. . . . But the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. . . . Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004. . . . After habeas relief had been denied and 30 days passed, federal rules of appellate procedure allowed for a 14-day extension to file an appeal. But inexplicably, the judge in the case, Donald Nugent of the Northern District of Ohio, gave Bowles 17 days to file instead of 14. Bowles appealed on the 16th day, and his appeal was rejected as untimely.

Justices curb unions' political use of fees

Public employee groups need a member's explicit approval before use dues for advocacy, Supreme Court rules unanimously.

By David G. Savage, Times Staff Writer

6-15-07 -- In a setback for organized labor, the Supreme Court ruled Thursday that states may bar public employee unions from using compulsory dues for political purposes unless individuals give their explicit approval. The 9-0 ruling opens the door for states to pass laws restricting use of union dues. . . . Nationwide, 12 million workers in public- and private-sector jobs are required to pay dues or fees to a union even if they elect not to join, and the National Right to Work Committee and other opponents of unions have fought these forced dues as unconstitutional. . . . President Bush and other conservatives have campaigned in favor of "paycheck protection" laws to limit the political use of union dues, long a major source of funding for Democratic candidates. Thursday's ruling in favor of such a law in Washington state implicitly endorsed those efforts.

U.S. Supreme Court Supports New York City’s Effort to Collect Taxes on Some U.N. Missions

By Linda Greenhouse

6-15-07 -- New York City can go forward with its effort to collect unpaid property taxes from foreign governments that use part of their United Nations missions for housing, the Supreme Court ruled on Thursday. . . . The court rejected an argument by India and Mongolia that the principle of sovereign immunity shielded them from a lawsuit the city filed in 2003 to establish its right to collect what it says is now about $25 million in unpaid taxes and interest. . . . “Property ownership is not an inherently sovereign function,” Justice Clarence Thomas said for the 7-to-2 majority. . . . The dissenters were Justices John Paul Stevens and Stephen G. Breyer. . . . The decision upheld a ruling issued last year by the United States Court of Appeals for the Second Circuit, in Manhattan. . . . The Supreme Court agreed to hear the appeal by India and Mongolia at the urging of the Bush administration, which told the court that allowing suits against foreign countries for unpaid property taxes would “adversely affect the nation’s foreign relations.” . . . Michael A. Cardozo, New York City’s corporation counsel, said on Thursday that to the contrary, “this is a critical decision for the rule of law.”

Justices, 5-4, Accept No Excuses From Inmate for Mistaken Late Filing of an Appeal

By Linda Greenhouse

6-15-07 -- A narrow Supreme Court majority on Thursday agreed that a lower court properly dismissed the appeal of a man who missed a federal filing deadline by three days because of a federal district judge’s erroneous instructions. . . . The defendant, Keith Bowles, who is serving a sentence of 15 years to life for murder, had argued that given the judge’s erroneous instruction — that he had 18 days to file an appeal instead of the 14 that federal law allows — his case should come within the “unique circumstances” doctrine that the Supreme Court created to recognize unusual instances when jurisdictional rules need not be strictly enforced. . . . The court, however, used the case to announce it was overruling the two precedents the Supreme Court had used when it established the “unique circumstances” doctrine in the 1960s. Writing for the majority, Justice Clarence Thomas said the court now regarded the doctrine as illegitimate. “If rigorous rules like the one applied today are thought to be inequitable,” Justice Thomas added, the remedy should come from Congress.

High Court Goes Against Labor in Pension Case

The Associated Press 

6-12-07 -- The Supreme Court on Monday decided against imposing a new requirement on employer pension plans. . . . In a unanimous decision, the justices said companies do not have a duty to consider an invitation to merge their pension plans as an alternative to terminating them. . . . The ruling came in the case of Crown Vantage Inc., a bankrupt paper company that received a merger proposal from a labor union pension fund to cover Crown's 17 pension plans. . . . At the time, Crown had already decided to terminate its pension plans and was considering using the money to buy annuities for plan participants and beneficiaries. Such a transaction would have enabled the company to recoup a $5 million surplus, which would have gone to the company's creditors.

Justices Allow Companies to Seek Recovery of Costs in Voluntary Superfund Cleanups

Pete Yost, The Associated Press 

6-12-07 -- The Supreme Court strengthened a landmark anti-pollution program Monday, enabling companies to recover costs when they voluntarily clean up hazardous material. . . . In a unanimous ruling, the justices said the federal Superfund law allows lawsuits to recover costs incurred in voluntary cleanups. The Bush administration had argued otherwise. . . . The law is worded "so broadly as to sweep in virtually all persons likely to incur cleanup costs" and the government's interpretation "makes little textual sense," said the opinion by Justice Clarence Thomas. . . . The case involves a company that contracted with the U.S. government to retrofit rocket motors. Atlantic Research Corp. voluntarily cleaned up pollution from rocket propellent that seeped into the soil and groundwater. . . . The company then sued the government in an effort to recoup some of the cleanup costs.

Supreme Court: Philip Morris Cannot Move Case to Federal Court Based on FTC Regulation

Andrew DeMillo, The Associated Press

6-12-07 -- A lawsuit against Philip Morris Cos. Inc. by smokers who claimed the company deceived consumers in the marketing of its "light" cigarettes must be tried in Arkansas state court and cannot be moved to federal court, the U.S. Supreme Court ruled Monday. . . . The unanimous decision came in a case that Lisa Watson and Loretta Lawson filed against the Richmond, Va.-based cigarette company in Pulaski County Circuit Court in 2003. The women argued that the company's Marlboro and Cambridge cigarettes weren't as low in tar and tobacco as advertised. . . . Philip Morris, a part of Altria Group Inc., moved the case to federal court in Little Rock, saying it could do so because the company was pervasively regulated by the Federal Trade Commission. The Court said the fact that a federal agency directs a company's activities does not permit removing the case to federal court. . . . "This was a slam dunk on behalf of our clients," said Darrin Williams, a Little Rock attorney who represented the two women. "It says no, corporations, you can't move a case to federal court because you don't want to go to state court."

High Court Rules Against Home Aide on Wages

By Steven Greenhouse

6-12-07 -- The United States Supreme Court ruled yesterday against a home care aide from Queens and upheld federal regulations that exempt most home care workers from minimum-wage and overtime protections. . . . In a 9-to-0 decision, the court rejected the arguments made by the home care aide, Evelyn Coke, that the Labor Department’s regulations should be invalidated because they conflict with Congress’s intent to broaden wage protections. . . . The ruling upset labor unions and women’s groups, which fear that it will push many of the nation’s 1.4 million home care workers into worse financial straits. But home care agencies and federal and city officials applauded the ruling, saying it would reduce labor costs for home care, costs that are largely borne by various levels of government. . . . The Bloomberg administration filed an amicus brief in the case, arguing that a victory for Ms. Coke could force the city, state and federal governments, which finance home care through Medicaid, to pay $250 million more a year to the 60,000 home care attendants in the city. . . . One of Ms. Coke’s sons said his mother was too ill to comment.

Supreme Court to Review Disparity in Crack and Powder Cocaine Sentences

Mark Sherman, The Associated Press 

6-12-07 -- The Supreme Court agreed Monday to review whether judges are required to impose dramatically longer sentences for crack cocaine than for cocaine powder, stepping into a long-running dispute with racial overtones. . . . Most crack cocaine offenders in federal courts are black. . . . The justices said they would hear the case of Derrick Kimbrough in the fall. Kimbrough, who is black and a veteran of the first war with Iraq in 1991, received a 15-year prison term for dealing crack and powder cocaine, as well as possessing a firearm in Norfolk, Va. . . . That was shorter than the federal sentencing guidelines that called for a range of 19 to 22 years in prison. . . . At Kimbrough's sentencing hearing, U.S. District Judge Raymond A. Jackson said the higher range was "ridiculous."

Assault Launched on High Court's Pay Disparity Ruling

Congress urged to undo decision that bars many unequal pay claims; Ledbetter is scheduled as witness in Tuesday hearing

Osita Iroegbu, Legal Times

6-11-07 -- When a Supreme Court ruling last month made it more difficult for victims of unequal pay to sue their employers, advocates for the American business community celebrated. . . . "We are thrilled," Karen Harned, executive director of the National Federation of Independent Business Legal Foundation, said at the time. . . . The thrill, however, could be gone -- and sooner rather than later. Almost immediately after the May 29 decision in Ledbetter v. Goodyear Tire & Rubber Co., Democratic staffers were quietly, yet urgently, crafting legislation to reverse the 5-4 ruling during what was supposed to be recess week on the Hill. . . . In Ledbetter, the Court's majority found that a claim of pay discrimination must be filed with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory action -- not 180 days from the complainant's last paycheck, as it had been previously interpreted. . . . The ruling sparked a stinging dissent from Justice Ruth Bader Ginsburg, the only woman on the bench. She called the Court's interpretation of Title VII "parsimonious" and, in what some saw as a call to action, remarked that "the ball lies in Congress' court" to correct the ruling.

Supreme Court to take FedEx age discrimination case

Associated Press

6-6-07 -- The Supreme Court said Monday that it will consider whether an age discrimination lawsuit against FedEx Corp. can proceed. . . . At issue is whether a group of 14 FedEx employees, led by Patricia Kennedy and Paul Holowecki, followed proper procedures in suing FedEx for age discrimination. . . . The Memphis, Tenn.-based company is arguing that the suit should be dismissed because Kennedy did not file a formal charge alleging age discrimination with the Equal Employment Opportunity Commission until after she sued FedEx. The other employees joined Kennedy’s complaint.

Ruling Affirms Judges' Authority

High Court Backs Exclusion of Juror In Capital Case

By Charles Lane, Washington Post Staff Writer

6-6-07 -- The Supreme Court bolstered trial judges' authority to shape juries in death penalty cases yesterday, ruling that a court in Washington state properly disqualified a man who expressed doubts about capital punishment during pretrial questioning. . . . By a vote of 5 to 4, the justices concluded that the exclusion was reasonable and consistent with Supreme Court precedents, which require that jurors in capital cases be "death qualified" -- able to impose death if the law provides for it, even if they oppose capital punishment. . . . The prospective juror said he supported the death penalty, but only if the killer might otherwise go free and kill again. Prosecutors argued that this meant he would automatically vote against the death penalty, because Washington allows an alternative of life in prison without parole. . . . The trial judge agreed, and the prospective juror was dismissed. The defendant, Cal Coburn Brown, was convicted and sentenced to death. But the defense appealed, and the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, overturned the sentence. The high court overturned that ruling yesterday.

Insurers must warn consumers about rates

Notification is required if a credit report boosts the price, justices rule.

By David G. Savage, Times Staff Writer

6-6-07 -- Consumers who are charged higher rates for insurance because of a poor credit report must be notified by the insurer, the Supreme Court ruled Monday. . . . However, the justices shielded most insurance firms from being sued in such cases, except when the insurer recklessly violates federal law. . . . The Fair Credit Reporting Act of 1970 was intended to protect consumers and to shield them from the hidden power of a bad credit report. Sometimes the credit report contains errors, and consumers should have a chance to learn about the mistakes and correct them, lawmakers said. . . . The law says companies must notify consumers whenever they are subjected to an "adverse action" because of information in their credit file. A company that "willfully fails" to follow the law can be sued and be required to pay damages. . . . Until Monday, courts were split on what constituted "adverse action" and a "willful" violation.

DECISIONS

Justices Rule on Proving Violations in Credit Reporting Cases

Pete Yost, The Associated Press 

6-5-07 -- The Supreme Court sided with two insurance companies Monday in a case involving alleged violations of the Fair Credit Reporting Act. . . . The law requires insurance companies and other businesses to notify customers who are charged more because of their credit ratings. . . . In a unanimous decision, the justices said Geico General Insurance Co. did not violate the law and that Safeco might have, but did not do so recklessly. . . . The insurance industry said a decision against it could have subjected companies to billions of dollars in punitive damages for failing to notify customers. . . . Thirteen state insurance commissioners said that a lower threshhold for proving liability -- adopted by the 9th U.S. Circuit Court of Appeals in San Francisco -- would motivate compliance with the law. . . . To find liability, a company's conduct must be more than "merely careless," wrote Justice David Souter.

High Court Says Florida Does Not Have to Pay Nudist's Lawyers

The Associated Press

6-5-07 -- The Supreme Court made it harder Monday to recover legal fees from the government, ruling against a woman who sued for the right to form a peace sign in the nude in a Florida park. . . . The justices ruled unanimously against Toni Anne Wyner, a nudist from Fort Pierce, Fla. . . . Wyner won a federal court ruling that allowed her and other performers to go forward with their protest in the nude on Valentine's Day 2003. . . . Based on the order, known as a preliminary injunction, a federal judge ruled that Florida should pay Wyner's lawyers $25,000 in legal fees. . . . But Wyner's lawsuit also was a broader challenge to a Florida law that bans nudity on beaches, arguing that the law violated her First Amendment right of free expression. . . . Wyner lost that fight and the Supreme Court said that what matters is the final resolution of the lawsuit.

Supreme Court Reinstates Death Sentence for Man Who Argued Juror Was Wrongly Excluded

Mark Sherman, The Associated Press 

6-5-07 -- The Supreme Court reinstated the death sentence Monday of a man convicted of carjacking, rape and murder who initially won a reprieve by arguing that a potential juror was wrongly excluded from his trial. . . . The Court, in a 5-4 decision, said that the Washington state judge who presided over the trial of Cal Coburn Brown properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty. . . . The juror in question was challenged by prosecutors because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Jurors' options were limited: they could sentence Brown to death or life in prison with no parole. . . . Defense lawyers did not object at trial. When the issue was raised on appeal, Washington state courts and a federal judge affirmed the conviction.

REFUSAL

Supreme Court Declines Case of Ala. Leukemia Victim's Widow

The Associated Press 

6-5-07 -- The widow of a leukemia victim failed to persuade the Supreme Court Monday to consider allowing her to sue oil companies over her husband's exposure to a toxic chemical, a case her lawyer calls a legal "Catch 22" in Alabama. . . . The justices without comment declined to take up the case of Martha Jane Cline, who is trying to hold the companies accountable for her late husband's health problems. Jack Cline, of Vance, Ala., died in January. . . . The Alabama Supreme Court ruled that he waited too long to sue, even though Cline didn't know he was sick until after the deadline to sue had passed. Cline's attorney, Robert Palmer, who has filed many suits in other states over exposure to toxic chemicals, said all other states have a time limit that begins when a person learns of an illness.

Conley R.I.P.

By Philip K. Howard

6-4-07 -- Recently, almost unnoticed, the Supreme Court repudiated a 1957 ruling, Conley v. Gibson, which opened the floodgates to abusive litigation. Now the Court needs to figure out how to put the lawsuit genie back in its bottle. . . . In Conley, the Supreme Court had instructed judges to almost never dismiss a claim. Cited in an amazing 40,000 decisions over the past 50 years, Conley gave lawyers carte blanche to sue for almost anything: "A complaint should not be dismissed … unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." . . . Conley and its progeny changed American culture. With judges unable to dismiss claims, suing for the moon became standard practice. Justice became a weapon for extortion. The effects rippled through daily dealings. Spontaneity was replaced by legal fear. . . . In a 2005 Harris poll, only 16% of Americans said they would trust our system of law if someone brought a baseless claim. Distrust of justice directly correlates to the loss of freedom in daily choices. . . . Conley v. Gibson is no longer the law of the land. Justice David Souter, writing for a 7-2 majority in an important antitrust case, Bell Atlantic v. Twombly, held that the "famous observation" in Conley "has earned its retirement."

May 2007

Injustice 5, Justice 4

New York times Editorial

5-31-07 -- The Supreme Court struck a blow for discrimination this week by stripping a key civil rights law of much of its potency. The majority opinion, by Justice Samuel Alito, forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer that had underpaid a female employee for years. The ruling is the latest indication that a court that once proudly stood up for the disadvantaged is increasingly protective of the powerful. . . . Lilly Ledbetter, a supervisor at the Goodyear Tire & Rubber Company in Gadsden, Ala., sued her employer for paying her less than its male supervisors. At first, her salary was in line with the men’s, but she got smaller raises, which created a significant pay gap. Late in her career, Ms. Ledbetter filed a complaint with the Equal Employment Opportunity Commission. A jury found that Goodyear violated her rights under Title VII of the Civil Rights Act of 1964. . . . Goodyear argued that she filed her complaint too late and, by a 5-4 margin, the Supreme Court agreed. Title VII requires employees to file within 180 days of “the alleged unlawful employment practice.” The court calculated the deadline from the day Ms. Ledbetter received her last discriminatory raise. Bizarrely, the majority insisted it did not matter that Goodyear was still paying her far less than her male counterparts when she filed her complaint.

The High Court Lays An Anonymous Egg

James J. Kilpatrick

5-31-07 -- The Supreme Court has a month to go before it closes up shop for the summer. More than 20 argued cases remain to be decided. Even so, it's time to close the nominations for Worst Opinion of the '06 term. Are you ready? . . . Hands down, without further debate or intervening motion, the silver-plated, hand-engraved, fur-lined thundermug goes to eight members of the court for their witless pronouncement of May 21 in Case No. 06-605, Los Angeles County v. Max Rettele . Not a single redeeming word can be said for it. . . . The opinion understandably was unsigned. No one wanted to take the blame for it. Only Justice David Souter dissented, and he dissented molto pianissimo , not with a bang but a whimper. These were the facts of the case: . . . In the summer of 2001, Los Angeles County police began an investigation of a ring of con artists. These were not violent criminals. They were swindlers -- sophisticated masters of the flimflam. They fleeced their victims through a scam based upon phony real estate loans. . . . The investigation soon centered upon a woman and three men who were living on Loneoak Avenue in Lancaster, Calif., some 30 miles north of downtown L.A. This much was instantly clear: All four of the suspects were African-American. One of them had registered a 9mm Glock handgun.

Foster Parents in Custody Fight Appeal

By Woody Baird, Associated Press Writer

5-31-07 -- The U.S. Supreme Court has been asked to hear the case of an American couple trying to prevent an 8-year-old girl they raised since infancy from being returned to her Chinese parents. . . . Jerry and Louise Baker filed their appeal request May 10 to the nation's highest court, asking it to block a Tennessee Supreme Court ruling that ordered the reunion of Anna Mae He with parents Shaoqiang and Qin Luo He. . . . The request is a long shot, and the U.S. Supreme Court has traditionally left family law disputes to the states, said Bruce Boyer, director of the Loyola University Child Law Clinic in Chicago. . . . "The chances that they are going to seriously consider the (appeal) petition are remote," Boyer said Wednesday. . . . U.S. Supreme Court Justice John Paul Stevens refused last week to delay the reunion pending consideration of the Bakers' appeal request. The Hes have notified the court they will have no response to the request, for which there is no timetable for a decision.

High Court Justices Take Tax Dispute Case and Two Others

The Associated Press

5-30-07 -- The Supreme Court agreed Tuesday to hear three business-related disputes, including one dealing with railroad taxes and another with a gravel company's suit against the government. . . . CSX Transportation Inc. is challenging Georgia's valuation of the railroad's property in that state, saying the true market value is $2.2 billion less than Georgia assessors say it is. At issue is whether federal law permits railroads to contest states' valuation methods. . . . A gravel company in Michigan is fighting a ruling that it waited too long to sue the U.S. government for taking part of the property the company leased to conduct its business. The government's involvement stems from a contaminated landfill on the site.

Supreme Court Limits Time Frame for Filing EEOC Claims

Tony Mauro, Legal Times

5-30-07 -- The Supreme Court on Tuesday made it significantly easier for employers to defend against Title VII workplace discrimination claims that are based on long-ago decisions about salary and raises. . . . By a 5-4 vote, the Court said that employees claiming they received disparate treatment based on gender or race must do so within 180 days of the original discriminatory action -- not within 180 days of their last paycheck. . . . The decision came in Ledbetter v. Goodyear Tire & Rubber Co., brought by Lilly Ledbetter, a manager at the Goodyear plant in Gadsden, Ala. She claimed that she was paid 15 percent to 40 percent less than her male counterparts, but the company successfully countered that her complaint was filed too late in relation to the employment decisions affecting her pay.

REFUSAL

Dead End for Anna Mae He?

Supreme Court Justice Declines to Intervene in Bitter Tennessee Custody Battle

By Jim Avila & Teri Whitcraft

5-25-07 -- The family that raised 8-year-old Anna Mae He since infancy learned late yesterday that U.S. Supreme Court Justice John Paul Stevens has turned down its bid for an emergency stay of the ruling that Anna Mae must be reunited with her biological parents. . . . It was the latest in a series of legal setbacks for Jerry and Louise Baker, who are desperately trying to hold on to the little girl they raised as their daughter since she was 3 weeks old. . . . Bitter Custody Battle -- The Tennessee case is one of most bitter child custody cases in recent memory. Anna Mae's birth parents, Jack and Casey He, say they gave the child up temporarily during a tough financial period in their marriage and were then tricked into signing over permanent custody. Last January, after a seven-year court fight to regain custody of their daughter, the state Supreme Court ordered that Anna Mae be returned to the Hes. . . . In court papers, Jerry and Louise Baker, who raised Anna Mae, say the decision to uproot Anna Mae from the only home she has ever known is cruel and inhumane. They contend that the court-ordered visits with her biological parents have traumatized Anna Mae and may cause her to have a nervous breakdown.

3rd Circuit Judge Urges Supreme Court to Revisit Doctrine of Intramilitary Immunity

Shannon P. Duffy, The Legal Intelligencer 

5-25-07 -- Adding his voice to a growing chorus, a federal appellate judge is urging the U.S. Supreme Court to revisit a 1950 decision that effectively bars all damage suits by members of the military against another member of the military -- even sexual harassment and retaliation claims. . . . "The doctrine of intramilitary immunity remains ripe for reconsideration by the Supreme Court in light of the questionable foundation upon which it stands," 3rd Circuit Judge D. Brooks Smith wrote in his concurring opinion in Matreale v. State of New Jersey Dept. of Military & Veterans Affairs. . . . Smith said he was forced to agree with his colleagues that Frank Matreale's suit should be dismissed, but only because the court was applying the broad immunity announced by the Supreme Court in its 1950 decision in Feres v. United States. . . . Matreale, a commissioned officer in the New Jersey Army National Guard, claimed in the suit that he was retaliated against after he provided a statement supporting a female guardsman's accusation that she had been sexually harassed.

New Supreme Court Rule Would Force Advocacy Groups to Reveal Membership Rolls
By Tony Mauro, Legal Times

5-24-07 -- Forty-nine years ago, the Supreme Court ruled that the government may not force advocacy groups to reveal their membership rolls, because of “the vital relationship between freedom to associate and privacy in one’s associations.” . . . Now, advocacy groups are grumbling that the high court is about to require them to do exactly what was prohibited in that 1958 ruling, NAACP v. Alabama. . . . Under a proposed rule change being considered by the Court, any group that files an amicus curiae brief in support of a party in a pending case would be required to state whether “a party is a member of the amicus curiae or made a monetary contribution to the preparation or submission of the brief.” If the Snack Food Association, for example, filed a brief on behalf of Frito-Lay, it would have to tell the Court that Frito-Lay is a member. . . . The U.S. Chamber of Commerce, which has a deep tradition of keeping the identity of its members private, is preparing comments objecting to the rule change, and may be joined by other groups. . . . Meanwhile, top Supreme Court advocates will meet Thursday at Georgetown University Law Center’s Supreme Court Institute to discuss this and other proposed changes in Court rules. The Court has asked that public comments be filed by June 4. The new rules will take effect Aug. 1.

Supreme Court Makes It Harder for Private Plaintiffs to Sue Companies for Antitrust Violations

Tony Mauro, Legal Times

5-22-07-- Private plaintiffs may be deterred from filing long-shot antitrust claims against big corporations because of a major Supreme Court ruling issued Monday. . . . By a 7-2 vote in Bell Atlantic v. Twombly, the Court said "a bare assertion of conspiracy will not suffice" to get beyond the summary judgment stage in claims under §1 of the Sherman Act. . . . The decision, while not establishing a brand-new standard, was viewed as a significant victory for big business in efforts to stave off class action antitrust lawsuits. . . . Justice David Souter, writing for the majority, voiced the same concern about "discovery abuse" that businesses have expressed concerning private antitrust litigation. "The threat of discovery expense will push cost-conscious defendants to settle even anemic cases," Souter wrote. . . . The decision stemmed from a suit brought by Milberg Weiss & Bershad on behalf of a class of local telephone and Internet service subscribers claiming that Bell Atlantic and other regional phone companies had agreed not to compete on each other's turf, and had engaged in other "parallel conduct" aimed at discouraging upstart carriers from breaking into the business.

U.S. Supreme Court Ends Lawsuit by Homeowners Rousted Naked From Bed During Search

Mark Sherman, The Associated Press

5-22-07-- The suspects were black. The occupants of the house were white, in bed and naked. Guns drawn, the sheriff's deputies ordered them out of bed anyway. . . . The homeowners sued the Los Angeles County Sheriff's Department for violating their civil rights. On Monday, the Supreme Court ended the lawsuit, saying the circumstances were regrettable but not an affront to the U.S. Constitution. . . . Max Rettele and Judy Sadler were in bed when officers, carrying a search warrant, entered their California home in December 2001 in pursuit of a fraud and identity-theft crime ring. One suspect in the case had a gun registered in his name. . . . The deputies believed that three suspected identity thieves, known to be black, still lived there or at another house nearby.

Legal Victory for Families of Disabled Students

By Linda Greenhouse

5-22-07-- A Supreme Court decision on Monday gave parents of children with disabilities the right to go to court without a lawyer to challenge their public school district’s individualized plan for their child’s education. . . . The 7-to-2 decision involved an interpretation of the federal law that gives all children the right to a “free appropriate public education,” regardless of disability. Millions of children receive benefits under the law, the Individuals with Disabilities Education Act. Most federal appeals courts have ruled that when a dispute brings families and school districts into court, the parents cannot proceed without a lawyer. . . . Many parents, including the couple from Parma, Ohio, who brought this case, either cannot afford a lawyer or cannot find one. Increasingly, school districts have been bringing parents who seek to handle their own cases into court on charges of violating state statutes against the “unauthorized practice of law.” . . . The Supreme Court’s ruling will therefore change the status quo in many parts of the country, opening federal courthouse doors that were previously closed to parents. The Bush administration supported the parents in this case, Jeff and Sandee Winkelman, who were represented in the Supreme Court without charge by a lawyer from Los Angeles, Jean-Claude André.

Supreme Court Rules Against Two-Time Killer on Death Row

The Associated Press 

5-15-07-- The U.S Supreme Court ruled against a death row inmate Monday who directed his lawyer not to present evidence that could spare him and then argued on appeal that the attorney was ineffective. . . . The Court reversed a 9th U.S. Circuit Court of Appeals decision granting twice-convicted killer Jeffrey Landrigan a hearing on his claim that his lawyer did not do enough to ward off the death sentence. . . . The appeals court should have deferred to lower court rulings against Landrigan, Justice Clarence Thomas wrote for the majority in a 5-4 decision. . . . "The Arizona court's determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts," Thomas wrote. . . . Justice John Paul Stevens, writing in dissent, said the court should have allowed the hearing to determine whether Landrigan truly did not want a judge to consider evidence in his favor as well as the strength of mitigating factors. "Without the benefit of an evidentiary hearing, this is pure guesswork," Stevens said.

Supreme Court Orders Lower Court Review of $82.6M Award in Ford Explorer Rollover

The Associated Press 

5-15-07-- The Supreme Court ordered a state appeals court Monday to review a decision giving $82.6 million to a woman who was paralyzed after her Ford Explorer rolled over. . . . The justices want a California appeals court to determine if its ruling is in line with the Supreme Court decision overturning a $79.5 punitive damages award in a tobacco case earlier this year. The Court said then that a jury may punish a defendant only for the harm done to the person who is suing, not to others whose cases were not before it. . . . Benetta Buell-Wilson, 51, was driving on an interstate east of San Diego in January 2002 when she swerved to avoid a metal object and lost control of her 1997 Explorer, which rolled 4 1/2 times. The mother of two was paralyzed from the waist down when the roof collapsed on her neck, severing her spine. . . . In June 2004 a San Diego jury found that her Explorer was defective because of instability and a weak roof. . . . A jury initially awarded $369 million, including $246 million in punitive damages. It was the first damage award against the Ford Motor Co. involving a rollover of an Explorer and one of the biggest personal injury awards ever against an automaker.

U.S. Supreme Court posts online proposed amendments to its procedural rules: You can view the proposed amendments at this link. Most notably, the Court proposes replacing many page limits with word limits, requiring electronic filing of briefs in addition to paper copies, and requiring that printed briefs use the font that the Court itself uses in its published opinions. – Posted by How Appealing

Supreme Court Adopts New Standard on Patent Litigation

Tony Mauro, Legal Times

5-1-07 -- In a major patent law development, the Supreme Court on Monday adopted a new, flexible standard that will make it easier for patents to be denied or challenged on the grounds that the invention at issue is too obvious to deserve patent protection. . . . The unanimous ruling in KSR International Co. v. Teleflex Inc. could also subject existing patent-holders to fresh litigation over obviousness -- a threshold issue that is part of every patent determination. . . . "This leaves patent litigation in a state of total disarray," says Kenneth Bass III of Sterne, Kessler, Goldstein & Fox, part of the legal team representing Teleflex, a Pennsylvania company whose patent for an automobile gas pedal assembly was challenged by KSR, a Canadian firm. Teleflex held onto its patent under a more restrictive standard for finding obviousness used by the U.S. Court of Appeals for the Federal Circuit. But the high court, in relaxing the standard Monday, ruled against Teleflex and returned the case to the Federal Circuit. . . . "Judges are now permitted to use their own common sense rather than objective evidence or testimony," Bass says.

High-Speed Case Crashes in High Court

Majority: 11th Circuit shouldn't have relied on plaintiff's version of events belied by videotape

Alyson M. Palmer, Fulton County Daily Report

5-1-07 -- A police officer can terminate a high-speed chase by forcing the suspect off the road when the pursuit threatens the lives of innocent bystanders, the U.S. Supreme Court ruled Monday in a Georgia case. . . . The 8-1 decision overturned a 2005 11th U.S. Circuit Court of Appeals opinion that allowed a case to proceed against a former Coweta County, Ga., police officer who faced a civil rights suit by a man rendered quadriplegic after a high-speed chase. . . . According to the Court's opinion, the Coweta officer had requested permission to use a Precision Intervention Technique, or "PIT," which is designed to cause a fleeing vehicle to spin to a stop. But instead, explained the Court, the deputy applied his push bumper to the rear of the suspect's vehicle. . . . In a ruling that could impact how courts consider summary judgment motions even outside the police excessive force context, Justice Antonin Scalia's majority opinion said that the 11th Circuit panel should not have relied on the plaintiff's version of events because it was contradicted by a videotape of events akin to "a Hollywood-style car chase of the most frightening sort."

Supreme Court Takes Second Look at Death Sentences for Foreigners

Mark Sherman, The Associated Press

5-1-07 -- The Supreme Court stepped into a Texas death penalty case Monday that mixes Bush administration claims of executive power with the role of international law in state court proceedings. . . . The case accepted by the justices for argument this fall concerns the fate of Jose Ernesto Medellin, a Mexican national who was sentenced in 1994 to die for the rapes and killings of two teenage girls. . . . The state wants to go ahead with Medellin's execution, despite a ruling from the International Court of Justice in The Hague that the convictions of Medellin and 50 other Mexican-born prisoners violated the 1963 Vienna Convention because they were denied legal help available to them under the treaty.

High Court Rules for Local Governments in Fight Over Garbage

Mark Sherman, The Associated Press

5-1-07 -- The Supreme Court ruled Monday that local governments can compel private trash haulers to use municipal facilities, even if it would cost more to keep garbage at home than to dispose of it elsewhere. . . . The ruling upholding local ordinances in upstate New York protects a stream of money that allows the counties, like other governments that have built recycling centers and landfills, to help pay off millions of dollars in debt they incurred to establish such facilities. . . . The trash companies had argued that the counties violated constitutional protections for interstate commerce. The companies said they would pay much less to send the garbage to out-of-state transfer stations where it is sorted and baled before being shipped off for permanent disposal. . . . But the Court, in a 6-3 decision, said the Oneida-Herkimer Solid Waste Management Authority treats "in-state private business interests exactly the same as out-of-state ones," avoiding any constitutional problems.

UVa law students' case picked by Supreme Court

By Liesel Nowak

5-1-07 -- A group of University of Virginia law students is venturing into an arena few legal professionals experience as it prepares arguments for a Supreme Court case. . . . The students have successfully petitioned the high court on behalf of a Louisiana man charged with drug and weapons violations as part of a new Supreme Court Litigation Clinic at UVa’s law school. . . . The nine students found the case, United States v. Watson, after scouring decisions on the appellate level. . . . Theirs was among the 1 percent of petitions chosen by the justices to consider each term, according to Dan Ortiz, the law professor who is helping to oversee the students. . . . Ortiz noted that most lawyers never get the chance to argue before the Supreme Court. . . . “It’s definitely a surprise that we got any case accepted at all … there’s a random element of luck in it,” said Khang Tran, a student in the clinic.

REFUSALS

High Court Deals Setback to Utility Industry in Clean Air Case

Pete Yost, The Associated Press

5-1-07 -- The Supreme Court on Monday dealt the utility industry its second setback this month on a program designed to clean up pollution at aging, coal-fired power plants. . . . The justices refused to review Bush administration standards favored by the companies and blocked a year ago by some state and local regulators and environmental groups. . . . The Court's action, however, is undercut by a new Bush administration regulatory proposal that would relax clean air standards at coal-fired plants. Environmental groups say the rule, if adopted, would give the industry what it could not win in the courts. . . . The Court's action Monday leaves in place a March 2006 court decision that went against both the Bush administration and the utility industry. The U.S. Circuit Court of Appeals for the D.C. Circuit declared Environmental Protection Agency regulations were so lenient that they violated the Clean Air Act.

Supreme Court won't decide Va.-Vermont lesbian custody fight

By Christina Nuckols, The Virginian-Pilot

5-1-07 -- U.S. Supreme Court justices sidestepped Monday a rancorous child custody battle entangled in questions over the legal status of same-sex civil unions. . . . The high court let stand without comment a Vermont state court ruling that a woman in that state has visitation rights with a Virginia child who was conceived by another woman while the two were joined in a civil union. The two women have since split up. . . . The c ourt likely will have at least one more chance to intervene in the dispute over 5 -year-old Isabella Miller-Jenkins, who lives near Winchester with her biological mother, Lisa Miller. The case is still pending in lower courts in both Virginia and Vermont.

April 2007

Supreme Court to Consider Case of Inmate Who Claims Jail Gave Him Tuberculosis

Conference Call: Prisoner argues TB risk was a violation of due process

Legal Times

4-27-07 -- Ronald Butler didn't have tuberculosis when he entered Minnesota's Ramsey County Adult Detention Center in July 2001 to await trial on charges that he sexually assaulted his girlfriend's 12-year-old daughter. But when he entered prison after his conviction, he tested positive for the deadly pulmonary disease. According to Butler, because he spent all of his time awaiting trial in a detention center, there is but one conclusion to draw: He must have contracted the disease while in the detention center because of that center's "deplorable sanitary conditions." He filed a pro se complaint against the sheriff in charge of the center, alleging that his treatment rose to the level of a civil-rights violation under Section 1983 of the Civil Rights Act (42 U.S.C. §1983), but it's doubtful that he ever suspected his case would reach the U.S. Supreme Court. But now, aided by professor Bruce LaPierre of Washington University in St. Louis School of Law's appellate clinic, his petition for certiorari in Butler v. Fletcher, No. 06-955, will be considered by the justices in their private conference today. . . . In the district court, Butler contended that while in the detention center he and others were confined in "two-person cells and in larger holding cells, where as many as twenty-six short-term detainees were held." In Butler's view, holding so many detainees -- all of whom had been charged but not convicted -- in such close quarters without taking basic steps to prevent the spread of disease violated his right under the 14th Amendment to substantive due process. Ergo, claimed Butler, Sheriff Robert Fletcher should be held legally responsible.

High Court to Review Money Laundering Case

The Associated Press 

4-24-07 -- The Supreme Court agreed Monday to review a case that would undercut the federal money laundering law used to prosecute thousands of defendants every year. . . . The Justice Department asked the Court to overturn an appeals court ruling that increases the burden of proof for convictions in such cases by requiring prosecutors to demonstrate the profitability of illegal activity. . . . The decision by the 7th U.S. Circuit Court of Appeals in Chicago "removes a large class of routinely prosecuted money laundering cases from the reach of the statute," the department's solicitor general said in a brief asking the justices to take the case. . . . How, the government asked, is it supposed to find hard evidence of profits when "criminals rarely keep accounting records, much less accurate ones."

Are passengers 'seized' during a police stop? Supreme Court to decide

Justices to decide search rights of passengers when a driver is pulled over.

By David G. Savage, Times Staff Writer

4-24-07 -- Are the passengers in a car that has been stopped by the police "seized" by the authorities, or are they free to walk away? . . . The Supreme Court took up that question Monday in a California case that could decide whether passengers are protected from "unreasonable searches and seizures" when officers pull over the vehicle in which they are riding. . . . Last year, the California Supreme Court gave police more leeway to search occupants of cars they stop when it ruled that drug evidence found on a passenger could be used against him. . . . The passenger was "not seized as a constitutional matter" when the driver was pulled over, the state court said in a 4-3 decision. Under that reasoning, the passenger had given tacit consent to be searched by staying in the car. . . . Most of the justices on the U.S. high court said Monday that view did not square with common sense. Several said they would not feel free to walk away if a police officer stopped the car they were riding in. The tenor of their comments suggested the California ruling would be reversed.

Supreme Court Avoids Student Recruiting Case

The Associated Press 

4-24-07 -- The largest private university in the country failed Monday to win Supreme Court review of a lawsuit against the institution over student recruitment. . . . The University of Phoenix wanted to reverse a decision by the 9th U.S. Circuit Court of Appeals in favor of two former school counselors who say their pay was based on the number of students they enrolled. The appeals court refused the for-profit university's request to dismiss the case. . . . Because of abuses brought to light in the 1990s, the Higher Education Act requires that schools promise not to base pay on securing enrollment or financial aid. . . . The University of Phoenix enrolls more than 200,000 students at 76 campuses across the country and through online learning centers for continuing adult education. . . . Former school counselors Mary Hendow and Julie Albertson sued under the False Claims Act, which allows citizens to go to court on behalf of the government to allege wrongdoing by a contractor. The government chose not to intervene in the suit against the University of Phoenix, instead reaching a settlement agreement in which the school did not admit any liability.

Case against University of Phoenix stands

The Supreme Court refuses to throw out a False Claims Act lawsuit alleging loan fraud.

By Henry Weinstein, Times Staff Writer

4-24-07 -- The U.S. Supreme Court on Monday rebuffed entreaties from the University of Phoenix to throw out a massive suit charging the nation's largest accredited private university with defrauding the government of millions of dollars in federal education loan funds. . . . The suit was filed in 2003 under the False Claims Act by two former employees who alleged that the school, which offers degrees to midcareer workers, violated federal rules that bar giving incentives to employees to recruit students to enroll in the college. . . . The False Claims Act permits individuals with exclusive knowledge of a fraud perpetrated against the federal government to file suit on behalf of the government and share in any financial recovery. An individual or company violating the law must pay the U.S. civil penalties and triple damages. . . . The University of Phoenix's website describes the school as "the largest institution of higher learning in the U.S., serving approximately 300,000 students through its more than 250 campuses and learning centers across the country."

Whistle-blower's attorneys want high court to revisit case

Justices denied $1 million share of fraud damages

By Ann Imse, Rocky Mountain News

4-23-07 -- Attorneys for Rocky Flats whistle-blower Jim Stone are asking the U.S. Supreme Court to admit that it was wrong. . . . They are asking the high court to make a rare reconsideration of its March 27 decision. The court denied Stone a $1 million share in fraud damages paid to the U.S. government by a former operator of the Rocky Flats nuclear weapons plant. . . . Stone attorney Hartley Alley, who filed the rehearing petition Friday, said the Supreme Court has not granted one for many years, and may take months to decide whether to take it up. . . . A court spokeswoman said such petitions are filed only three or four times a year. . . . Court rules say a majority must agree to the rehearing. . . . Stone, a former Rocky Flats engineer, died at the age of 82 on April 11, just two weeks after the high court ruled against him in a landmark case. His widow, Virginia, now takes over as petitioner. . . . The court's ruling made it harder for people who blow the whistle on fraud against the federal government to collect a share of the winnings.

High Court Says Attempted Burglary Can Bring Longer Sentence Under 'Career Criminal' Law

Pete Yost, The Associated Press 

4-19-07 -- The Supreme Court on Wednesday underscored the broad impact of a federal law allowing longer sentences for violent "career criminals." . . . In a 5-4 decision, the Court ruled against Alphonso James, a Florida man with three prior felony convictions, including one for attempted burglary. . . . As long as an offense presents a serious potential risk of injury to another person, it satisfies the requirements of the Armed Career Criminal Act, Justice Samuel Alito wrote in the majority opinion. Attempted burglary under Florida law satisfies the requirement, Alito added. . . . In dissent, Justice Antonin Scalia said the boundaries of the act are "ill-defined" and that the Court's majority failed to provide guidance that can be applied consistently by the hundreds of district judges that impose sentences every day. . . . "We have the responsibility to ... prevent arbitrary or discriminatory sentencing," wrote Scalia.

Supreme Court upholds ban on abortion procedure

4-19-07 -- (AP) -- The Supreme Court upheld the nationwide ban on a controversial abortion procedure today, handing abortion opponents the long-awaited victory they expected from a more conservative bench. . . . The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion. . . . The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," Justice Anthony Kennedy wrote in the majority opinion. . . . The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Supreme Court Says Federal Government Is Sole Regulator of Bank Subsidiaries

Tony Mauro, Legal Times 

4-19-07 -- National banks won a major victory Tuesday when the Supreme Court ruled that the federal government, not states, has the pre-eminent role in regulating banks' mortgage business, even if conducted by subsidiaries. . . . By a 5-3 vote in Watters v. Wachovia Bank, the Court found that the National Banking Act pre-empts state regulation of banks -- and that the pre-emption extends to their subsidiaries, which the Court said are "equivalent" to the national banks themselves. . . . Banks fought hard for federal regulation under the Office of the Comptroller of the Currency, rather than subjecting themselves to differing -- and more aggressive -- rules and enforcement at the state level. . . . In the case before the Court, Wachovia Mortgage had been licensed in Michigan, but in January 2003 it notified the state that it had become a wholly owned operating subsidiary of Wachovia Bank, and as such no longer was subject to Michigan's registration requirements. State banking regulator Linda Watters responded by barring the company from doing business in Michigan. Wachovia went to court to challenge her decision, and the bank won in the lower courts.

Worker retaliation can be 'hostile'

The Supreme Court was wrong to pass up an opportunity to let a whistle-blower sue.

LA TIMES EDITORIAL

4-19-07 -- AFEW DAYS AFTER CBS Radio fired Don Imus for referring to black female basketball players at Rutgers as "nappy-headed hos," the U.S. Supreme Court winked at an even uglier racial slur. The justices on Monday declined to review a lower-court decision against a black IBM contract worker who was fired after complaining that a co-worker had described two African American murder suspects as "black monkeys." . . . In October 2002, Robert L. Jordan was in a room at an IBM office in Maryland watching a news report about the arrest of two suspected snipers, both black, who had terrorized the Washington area. A co-worker in the room allegedly declared that "they should put those two black monkeys in a cage with a bunch of black apes and let the apes [sexually assault] them." . . . Jordan complained to his superiors and, in his version of events, was repaid for his whistle-blowing by being verbally harassed, given a heavier workload and eventually fired. Yet two lower courts refused to allow Jordan's complaint to go to trial because the "isolated racial slur" did not signify a "hostile workplace environment."

Supreme Court Quickens Pace With Big Cases to Come

Tony Mauro, Legal Times 

4-10-07 -- Crunch time is coming early this term at the Supreme Court. . . . It's not just that the Court is substantially behind in issuing opinions -- only 22 so far this term, compared to 35 at this point last term. Several of its knottiest issues -- "partial-birth abortion" and the use of race in public school class assignments, to name two -- have yet to emerge. . . . In addition, for its two-week argument cycle beginning April 16, its final cycle for the term, the Court will hear oral arguments in 16 cases. That's up from the 12 cases per cycle that has been the norm in recent years. On four out of the six days of arguments (the Court operates on a Monday-Tuesday-Wednesday argument schedule), it will hear three, whereas on most other days this term, it has heard only two. On several days in February and March, it only heard one case. . . . All of which is likely to make May and part of June a seven-day-a-week affair for the law clerks, if not for the justices, and will probably make for frayed nerves and fractured rulings.

Supreme Court: More Scrutiny Required in Whistleblower Claims

Recent ruling could lead to fewer recoveries for whistleblowers

Marcia Coyle, The National Law Journal

4-6-07 -- Lawyers representing whistleblowers and the federal government in potentially lucrative suits under the False Claims Act will be forced to scrutinize a whistleblower's fraud allegations much more closely before going to court because of a recent U.S. Supreme Court decision. . . . That scrutiny is likely to lead, say False Claims Act experts, not only to fewer recoveries for whistleblowers but also to a changed relationship between whistleblowers and the government, frequent "partners" in pursuing fraud under the FCA. . . . The actual impact of the decision in Rockwell International Corp. v. U.S., No. 05-1272, beyond the immediate case itself, probably will figure into the government's more than 450 FCA investigations under way in the health care industry, said FCA litigator John Degnan, shareholder in Briggs and Morgan's Minneapolis office. . . . It also may have a profound impact on a "floodgate" of cases involving potential fraud in government contracts to rebuild Iraq that are expected to begin to emerge soon from under court seal, said Peter B. Hutt II, vice chairman of Washington-based Miller & Chevalier's litigation/government contracts department. . . . "I don't think the decision has a chilling effect on whistleblowers, but it may have a leveling effect," said Briggs' Degnan. "I think there will be less of an incentive for someone just to throw out some claims they think may be fraud because of the high upside of recovery if they are successful."

Century-Old Case Plays Role in Justice Kennedy's Global Warming Swing Vote

Tony Mauro, Legal Times

4-5-07 -- A battle of footnotes in Monday's Supreme Court global warming decision Massachusetts v. EPA makes it clearer than ever how crucial Justice Anthony Kennedy's vote is to the outcome of big cases. . . . Justice John Paul Stevens, writing for the five-member majority, and Chief Justice John Roberts Jr., writing for the four dissenters, crossed swords over the meaning of Georgia v. Tennessee Copper Company, a completely obscure decision written by Justice Oliver Wendell Holmes Jr. just shy of a century ago. Holmes ruled that Georgia had standing to complain about the Tennessee company's noxious emissions that resulted in a "wholesale destruction of forest, crops and orchards" in Georgia land just across the border from Tennessee. . . . "The case has been argued largely as if it were one between two private parties; but it is not," Holmes wrote. "This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain."

Supreme Court: prisons liable for lewd inmates

The high court let stand Monday a ruling that California officials didn't address sexual harassment.

By Warren Richey | Staff writer of The Christian Science Monitor

4-4-07 -- When Deanna Freitag began work as a guard at California's Pelican Bay State Prison, she became the object of a special brand of unwanted attention from three inmates in the highest security wing of the institution. She was repeatedly the target of lewd, exhibitionist behavior. . . . Male guards shrugged off the inmates' X-rated graphic displays, saying prisons are inherently hostile. Ms. Freitag complained to prison officials, warning that the inmates' conduct was creating a sexually hostile work environment in violation of Title VII of the Civil Rights Act. . . . The managers say they took action against two of the inmates and arranged counseling for the third, but the lewd conduct continued. After more complaints from Freitag, prison managers retaliated – against her. . . . They attempted to destroy her credibility, according to her lawyer, and eventually fired her. She went to court, where a jury ruled that the inmates had created a sexually hostile work environment and that prison officials failed to adequately address it. The panel ordered the state to pay Freitag $600,000 in damages. . . . On Monday, the US Supreme Court declined to take up Freitag's case, rejecting an appeal filed by the California Attorney General's office. . . . Freitag's lawyer, Pamela Price of Oakland, Calif., says the case should have been resolved long ago. But she says state corrections officials have resisted fully enforcing gender protections in Title VII. "There are people still in the department who think it is a joke, who think this is just women making a lot of noise about nothing."

Supreme Court ruling on global warming: There they go again

Bryan Fischer

4-4-07 -- On Monday, the Supreme Court once again demonstrated it has no regard for the constitutional limits on its judicial overreach by meddling in issues that were designed by the Founders to be handled by the legislative and executive branches of government. . . . The Court essentially ordered the Environmental Protection Agency (EPA) to regulate carbon dioxide emissions and other greenhouse gases, or face further legal action. . . . The Justices, evidently now fancying themselves the not-to-be-questioned arbiters of science along with just about everything else, ruled that CO2 is a pollutant. But it is not. CO2 is plant food, and higher concentrations of CO2 are beneficial to plant growth and therefore a positive boon to human life. During photosynthesis, plants convert CO2 to carbohydrates and release oxygen into the atmosphere in the process. . . . The Court's ruling ignores the fact that for the last 30 years, the EPA has been ordering automakers to find ways to eliminate every other emission from tailpipes except for CO2, for the obvious reason that it is not a pollutant. . . . Justice Stevens, who has published not a single peer-reviewed paper on the subject, made another scientific error in his opinion when he declared that CO2 was "the most important ... greenhouse gas." It isn't — water vapor is. But apparently the Court reasoned it had little control over the oceans — the primary source of water vapor — and would therefore have to content itself with ordering people around who will meekly comply with its increasingly outrageous and unconstitutional rulings.. . . The Court's ruling essentially ratifies the Kyoto Protocol of 1997, which the U.S. Senate rejected 95-0. Once again the left, unable to achieve its agenda through the democratic process, has resorted to the autocratic power of the Supreme Court to get what it wants. . . . The ruling in essence eliminates the need for either a legislative or executive branch, and would logically lead to the transfer of all bureaucratic agencies to the direct control of the Supreme Court, which could then run the country without the meddlesome issue of representative democracy to get in its way.

High Court Orders EPA to Review Greenhouse-Gas Emissions

Tony Mauro, Legal Times 

4-3-07 -- Adding its voice to growing alarm over global warming, the Supreme Court on Monday ordered the Environmental Protection Agency to take a fresh look at the problem with an eye toward regulating greenhouse-gas emissions from cars. . . . The 5-4 ruling in Massachusetts v. Environmental Protection Agency is a sharp rebuke to the Bush administration, which argued that such gases are not air pollutants under the meaning of the Clean Air Act. The EPA also said that even if it did have the authority to regulate new cars' emission of greenhouse gases, it would choose not to, because the problem is being addressed in other ways. . . . The Court's newest justices, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., both dissented. . . . Justice John Paul Stevens, writing for the Court, said the Clean Air Act gives the EPA authority over greenhouse-gas emissions, adding that the only way the EPA could refuse to act is if it now determines that greenhouse gases do not contribute to climate change.

Supreme Court Won't Hear Guantanamo Detainees' Appeal

Jason McLure and Tony Mauro, Legal Times

4-3-07 -- The Supreme Court on Monday declined to hear the next wave of appeals from Guantanamo detainees seeking to challenge their detention in federal court. . . . The twin cases, Boumediene v. Bush and al Odah v. United States, filed on behalf of nearly 40 detainees at the prison in Guantanamo Bay, Cuba, sought to overturn a provision of the Military Commissions Act that stripped detainees of the ability to challenge their detention before a federal district judge. . . . The move lets stand a 2-1 decision by the U.S. Court of Appeals for the D.C. Circuit in February that upheld the portion of the commissions law dealing with habeas corpus. The constitutionality of the commissions themselves was not an issue in the case. . . . In denying review in the cases, Justices John Paul Stevens and Anthony Kennedy wrote that the detainees had not yet exhausted "available remedies." But they issued a warning to the government by citing an earlier detainee case in which Kennedy had written that the high court "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised."

March 2007

Justices Challenge Arguments in Favor of Shareholders Suing Companies

Marcy Gordon, The Associated Press

3-29-07 -- Several Supreme Court justices challenged shareholder groups who were arguing Wednesday against standards that could make it tougher for investors' cases to go forward when they sue companies for fraud. . . . Appeals courts have been split on whether a stricter standard should be applied for initially making a case in such lawsuits. The Bush administration favors the tougher standard, but the investor groups say it would go too far in choking off suits. . . . Several justices suggested not only going along with the stricter standard for starting cases but raising the bar for proving cases later on to the same higher level. . . . The high court is being asked to clarify what legal hurdles investors must clear in a case with far-reaching repercussions for class action lawsuits against public companies. Such suits have brought billions of dollars to shareholders in connection with the 2002 wave of corporate scandals.

Supreme Court Agrees to Review Child Pornography Law

Pete Yost, The Associated Press

3-27-07 --  The Supreme Court agreed Monday to decide the constitutionality of a child pornography law that a lower court criticized as criminalizing merely talking about illegal images. . . . The issue arose in the case of Michael Williams, whose conviction in Florida for promoting, or pandering, child porn on the Internet was reversed by the 11th U.S. Circuit Court of Appeals. . . . The justices took the case at the Bush administration's request. It will be argued in the fall. . . . The appeals court panel found that the promoting, or pandering, provision of the PROTECT Act of 2003 was overbroad and impermissibly vague. "Non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment," the Atlanta-based court said.

High Court to Consider Liability of 'Secondary Actors' in Securities Fraud

Christopher S. Rugaber, The Associated Press

3-27-07 --  The Supreme Court said Monday it will consider whether shareholders of companies that commit securities fraud should be able to sue investment banks, lawyers and others that allegedly participated in the fraud. . . . The case, which won't be argued until the Court's next term beginning in October, will be closely watched on Wall Street and in law firms around the country as federal appeals courts have split on whether such "secondary actors" can be held liable. . . . Last week, the 5th U.S. Circuit Court of Appeals ruled against a class action lawsuit brought by former Enron shareholders against several investment banks, including Merrill Lynch & Co. Inc. and Credit Suisse Group, over their alleged role in Enron's collapse. . . . The 5th Circuit found that the banks only "aided and abetted" Enron's fraud. Under a 1994 Supreme Court ruling, companies are generally protected from shareholder lawsuits if they aid and abet fraud, though the Securities and Exchange Commission can pursue civil actions against them.

Murderer's fate in hands of Supreme Court

Elizabeth Auster, Plain Dealer Bureau

3-27-07 --  Washington- The U.S. Supreme Court grappled Monday with whether a Clevelander convicted of murder should lose his right to appeal because he missed a deadline after a judge gave him the wrong date. . . . Paul Mancino Jr., an attorney representing the convict, conceded that in 2004, he missed a 14-day federal deadline for filing a notice that he planned to appeal his client's conviction. But Mancino said he mistakenly assumed that a federal judge who gave him 17 days to file the notice was correct. Mancino filed the motion in 16 days, before the deadline set by U.S. District Judge Donald Nugent. . . . "I don't think it's unreasonable to rely upon a directive from a court," Mancino told the court.

Supreme Court Justices Continue to Play Musical Chairs in Credit Suisse Case

Tony Mauro, Legal Times

3-26-07 -- Supreme Court sources confirmed Friday afternoon that Chief Justice John Roberts Jr. has decided to rejoin the case of Credit Suisse v. Billing, set for argument on Tuesday. . . . This, after he had recused from the outset of the case -- presumably because of assets he holds in some of the companies involved in the antitrust case. . . . On March 19, Justice Anthony Kennedy, who had been in the case before, suddenly decided to recuse, an action probably traceable to the fact that his son Gregory is a managing director at Credit Suisse.

Supreme Court Declines Case To Reinstate Judge In Indian Royalties Dispute

3-26-07 -- (AP) The Supreme Court on Monday rejected appeals by American Indians to step into a decade-old lawsuit accusing the government of mismanaging more than $100 billion in oil, gas, timber and other royalties from their lands. . . . The justices declined to disturb an appeals court ruling that removed U.S. District Judge Royce Lamberth from the case. The appeals court said Lamberth, who held successive Democratic and Republican Interior Department secretaries in contempt of court, had lost his objectivity in the case. . . . The court also refused to review another appeals court ruling that reversed Lamberth's order that the Interior Department disconnect its computers from the Internet for failing to provide adequate security for the Indians' trust records.

Supreme Court Blocks Execution of Ohio Inmate Who Scattered Victim's Remains

Erica Ryan, The Associated Press

3-21-07 -- The U.S. Supreme Court blocked the execution of a man who had been scheduled to die Tuesday for killing a woman and scattering her remains across two states. . . . Kenneth Biros had waited for the decision hours past his 10 a.m. scheduled execution time at Ohio's death house. . . . The justices' one-sentence decision agreed with two lower courts that delayed the execution so he could continue arguing that Ohio's method of lethal injection is cruel and unusual punishment. The 6th U.S. Circuit Court of Appeals refused earlier Tuesday to allow a hearing before the full court to consider the state's appeal. . . . The execution team had been waiting while the high court debated, and was ready to administer the lethal injection if the court granted the state's request to proceed with the execution. . . . "To put these poor people through that is just not right," defense attorney Timothy Sweeney said of Biros and his family.

High Court Says Travelers Can Seek Attorney Fees in PG&E Bankruptcy Case

The Associated Press 

3-21-07 -- The Supreme Court ruled Tuesday that Travelers Casualty & Surety Co. of America can seek to recover attorney fees from Pacific Gas and Electric Co. in a federal bankruptcy case. . . . In a unanimous decision written by Justice Samuel Alito, the Court said federal law does not prohibit claims for such fees. . . . Underlying the dispute is Travelers' issuance of a $100 million surety bond assuring payment of workers' compensation benefits to injured employees of PG&E. . . .Amid California's energy crisis, PG&E filed for federal bankruptcy protection to reorganize its debts. . . . Travelers went to bankruptcy court and objected that PG&E was not providing adequate information on how the reorganization plan would deal with workers' compensations claims or Travelers' rights. . . . Following negotiations, Travelers sought to recover $167,000 in legal fees.

Roberts, Alito May Split on Student Speech in 'Bong Hits 4 Jesus' Case

Kenneth Starr argued school officials can restrict pro-drug messages

Tony Mauro, Legal Times

3-20-07 -- During oral arguments Monday, the Supreme Court's two newest justices seemed to be on opposite sides of a major free-speech case, forecasting possible sharp divisions among justices on the power of public-school officials to censor students. . . . The case Morse v. Frederick began in 2002 when Joseph Frederick, then a Juneau, Alaska, high school student, unfurled a banner bearing what even he says was a nonsensical message: "BONG HITS 4 JESUS." Principal Deborah Morse, interpreting it as a pro-drug message, told him to take it down and suspended him when he didn't. **************On Monday, former solicitor general Kenneth Starr and deputy solicitor general Edwin Kneedler, arguing on behalf of Morse, seemed to win over Chief Justice John Roberts Jr. with the argument that school officials should be given deference when restricting student speech to advance a school's educational mission -- especially, though not exclusively, when that mission is fighting illegal drugs. . . . "Can't the school decide that it's part of its mission to try to prevent its students from engaging in drug use?" Roberts asked incredulously. . . . But Justice Samuel Alito Jr. described that as a "very, very disturbing argument," because granting such deference would give school officials a broad charter to punish student speech by simply declaring it contrary to their ever-expanding educational mission.

Supreme Court Declines to Hear Cases on Harassment, Pensions

The Associated Press

3-20-07 -- The Supreme Court declined Monday to use a sexual harassment claim from a 16-year-old ice cream scooper in Illinois to decide whether an underage employee must show that her co-worker's attention was unwelcome. . . . The case stemmed from a sexual encounter between a teenager and a 25-year-old co-worker that Illinois law defines as statutory rape. . . . The teenager, identified only as Jane Doe in court papers, and her shift supervisor, Matthew Nayman, worked at an Oberweis Dairy store in Illinois. The North Aurora, Ill.-based company has 43 ice cream stores in four Midwestern states. . . . Nayman was convicted of aggravated sexual abuse of a minor. There was no allegation of forcible rape, the company said, because the teenager went to Nayman's apartment, disobeying her mother's instructions not to socialize with him. . . . The 16-year-old then filed a discrimination claim with the Equal Employment Opportunity Commission alleging that she was subjected to inappropriate sexual advances.

Wyo. Rancher's Harassment and Retaliation Case Argued Before Supreme Court

Mary Clare Jalonick, The Associated Press

3-20-07 -- A Wyoming rancher should be allowed to sue individual federal workers for harassment and retaliation under federal racketeering law, the rancher's lawyer told the U.S. Supreme Court Monday. . . . Thermopolis, Wyo., rancher Harvey Frank Robbins maintains that Bureau of Land Management employees pulled his grazing permits and otherwise persecuted him to try to get him to give the government road access across his ranch. The court is considering whether his case can legally continue. . . . Harvard Law Professor Laurence Tribe argued the case for Robbins, saying there should be a constitutional avenue for private citizens to sue government employees for continued harassment, instead of having to sue for individual retaliatory actions. . . . The Bureau of Land Management, represented by the Department of Justice, argued that there is no precedent for such lawsuits under current law and thus their employees are immune from them.

Law Prof Takes Case to the Supreme Court

Professor Laurence H. Tribe ’62 defended a rancher’s rights in front of former student

By Kevin Zhou, Crimson Staff Writer

3-20-07 -- Yesterday, Chief Justice of the United States Supreme Court John G. Roberts ’76, a graduate of Harvard Law School, got to turn the tables on one of his former instructors. . . . In his first Supreme Court appearance since December 2004, Loeb University Professor Laurence H. Tribe ’62 argued that the property rights of Harvey F. Robbins, the Wyoming rancher he was representing, were violated when the U.S. Bureau of Land Management (BLM) took retaliatory action against him for failing to give the government access to a road. . . . “They ransacked his cabin, they got a neighbor to run a truck into him when he was on horseback, they fabricated felony charges against him,” Tribe said. “All because he wouldn’t bow to their demands.” . . . The Supreme Court has to determine if plaintiffs can sue government officials personally under federal racketeering laws; Robbins is trying to sue BLM employees. . . . In his argument, Tribe claimed that the Fifth Amendment protects citizens from facing retaliation from the government for excluding the government from private property.

Guantanamo Detainees Ask Supreme Court to Guarantee Legal Rights

Mark Sherman, The Associated Press 

3-6-07 -- Lawyers for Guantanamo detainees held more than five years without charges asked the Supreme Court Monday to step in a third time to guarantee that they can challenge their confinement in U.S. courts. . . . The detainees want the justices to hear their case and issue a decision before the Court ends its term in early summer. . . . "Not only are these questions of paramount legal importance, but the extreme and worsening plight of the Guantanamo detainees make them questions of great humanitarian urgency as well," lawyers for the detainees wrote in court papers urging the justices to decide the case. . . . The Court has twice ruled that foreigners imprisoned at the U.S. naval base in Cuba can pursue their cases in American courts, rejecting Bush administration arguments.

U.S. Supreme Court vacates widely criticized 9th Circuit decision in Poway “T-shirt” case

Nation’s highest court grants request of ADF attorneys to consider case, then vacates 9th Circuit’s approval of censorship of Christian students

ADF Media Relations

3-6-07 -- The U.S. Supreme Court today granted review of the appeal of a high school student represented by attorneys with the Alliance Defense Fund who was prohibited from wearing a T-shirt at school expressing his biblical views on homosexual behavior.  The court then ruled 8 to 1 to vacate a decision by the U.S. Court of Appeals for the 9th Circuit against the student. . . . “Students simply do not lose their First Amendment rights at the schoolhouse gate,” said ADF Senior Counsel Kevin Theriot.  “Two 9th Circuit judges issued an extremely dangerous ruling last year, allowing a school to censor the Christian point of view, while permitting students to speak out in support of homosexual behavior.  Today’s decision by the U.S. Supreme Court summarily eliminates that ruling, giving us much firmer footing in pursuing this case.” . . . The high court vacated the 9th Circuit’s decision that denied the request of ADF attorneys to halt the school policy while the student’s lawsuit against the school district moves forward.  The justices said the 9th Circuit’s decision is moot now that the case itself has been ruled on in district court and is moving up through the appeals process (www.telladf.org/news/story.aspx?cid=4008).

'Bong Hits 4 Jesus' goes to the Supreme Court

JUNEAU: Teen suspended for banner gets his day in nation's highest court.

By Tom Kizzia, Anchorage Daily News

Joe Frederick was 18 years old in 2002 when he was suspended.

 3-5-07 -- The long journey started five years ago, on a quiet afternoon at Juneau-Douglas High School, as a student sat alone in the commons area reading Albert Camus' novel "The Stranger." . . . In mid-March the road ends at the U.S. Supreme Court, where the nationally watched "Bong Hits 4 Jesus" case will test the limits of free speech in public schools. . . . Joe Frederick was an 18-year-old senior back then. His classes were done for the day, and "Camaro Joe," as some kids called him, was waiting for his girlfriend to finish so he could give her a ride home. As Frederick recalls the story, a vice principal approached and told him he couldn't stay in the commons without supervision. He would have to leave the campus to wait for her.

High Court Debates Suit Against White House's Faith-Based Initiative

Case is an important test for a 39-year-old precedent on First Amendment establishment-clause cases

Tony Mauro, Legal Times

3-1-07 -- Supreme Court Justice Stephen Breyer looked skyward Wednesday as he tried to come up with a "more amazing" hypothetical during arguments in a key church-state case. With or without divine intervention, he found one: Could the federal government fund churches and ministers of a single religion nationwide "dedicated to the proposition that this particular sect is the true sect," without fear of taxpayer lawsuits against it? . . . "Horrible hypothetical," growled Solicitor General Paul Clement, but he went on to say yes. "The bottom line is that there would not be taxpayer standing." With a helpful suggestion from Chief Justice John Roberts Jr., Clement qualified his point by asserting that adherents of other religions could file suit against such a program on the basis that they were being discriminated against. But Clement held firm on the point that taxpayers, merely as taxpayers, could not challenge a network of government-funded churches. . . . That exchange may prove crucial in determining the outcome of the case before the Court, Hein v. Freedom From Religion Foundation. The Wisconsin-based foundation filed a taxpayer lawsuit against the Bush administration's funding of faith-based initiatives, claiming that conferences sponsored under the funding program favor religious groups. The government defended the program, claiming the plaintiffs did not have standing, but the 7th U.S. Circuit Court of Appeals said the foundation could continue with its suit.

February 2007

Parents Don't Need Lawyer for Child's Special Education Needs, High Court Told

Mark Sherman, The Associated Press 

2-28-07 -- Parents should not be forced to hire a lawyer to sue public school districts over their children's special education needs, the lawyer for parents of an autistic child told the Supreme Court Tuesday. . . . "What we're advocating here is access to the courts," said Jean-Claude Andre, who represents Jeff and Sandee Winkelman, and their son, Jacob, in their fight against the Parma, Ohio school district. . . . Until now, most federal courts have said parents don't have the right to sue and, if they are not lawyers, cannot represent their children in lawsuits filed under the Individuals With Disabilities in Education Act, the main federal special education law. . . . The Winkelmans can't afford a lawyer or the cost of private schooling for 9-year-old Jacob. Neither parent is a lawyer.

Government by Law, Not Faith

Editorial

2-28-07 -- The Supreme Court hears arguments today in a case that could have a broad impact on whether the courthouse door remains open to ordinary Americans who believe that the government is undermining the separation of church and state. . . . The question before the court is whether a group seeking to preserve the separation of church and state can mount a First Amendment challenge to the Bush administration’s “faith based” initiatives. The arguments turn on a technical question of whether taxpayers have standing, or the right to initiate this kind of suit, but the real-world implications are serious. If the court rules that the group does not have standing, it will be much harder to stop government from giving unconstitutional aid to religion. . . . Soon after taking office, President Bush established the White House Office of Faith-Based and Community Initiatives, and faith-based offices in departments like Justice and Education. They were intended to increase the federal grant money going to religious organizations, and they seem to have been highly effective. The plaintiffs cited figures showing that from 2003 to 2005, the number of federal grants to religious groups increased 38 percent. The Freedom From Religion Foundation and several of its members sued. They say that because the faith-based initiatives favor religious applicants for grants over secular applicants, they violate the Establishment Clause of the First Amendment, which prohibits government support for religion.

Supreme Court Argument Transcript:
Hein v. Freedom From Religion Foundation, Inc., No. 06-157

Justices Enter Church-State Fray

Challenge to President Bush's faith-based initiative raises standing issues

Marcia Coyle, The National Law Journal

2-27-07 -- The newly constituted Roberts Court gets its first opportunity to wade into the politically sensitive area of church-state separation in a case involving President Bush's controversial Faith-Based and Community Initiative. . . . The arguments that U.S. Supreme Court justices will hear on Wednesday will not focus on the merits of the broad constitutional attack leveled in 2004 against the White House program, an initiative designed to increase religious groups' involvement in providing social services. . . . Instead, the arguments will target the key to the courthouse door -- standing to sue -- or, in this case, the ability of taxpayers to challenge the Executive Branch's expenditure of money in ways that allegedly violate the First Amendment's establishment clause. Hein v. Freedom from Religion Foundation, No. 06-157. . . . But to the numerous interest groups that have lined up on the side of the Bush administration or its opponent, the Freedom from Religion Foundation, this case is more than an examination of the technical requirements for standing to sue.

Chase Video Steals Show as High Court Hears Case on Police Force

Tony Mauro, Legal Times

2-27-07 -- Even at the Supreme Court, a picture -- or in this case, a video -- can be worth a thousand words. Or more. . . . In the case of Scott v. Harris, which was argued Monday, justices debated whether Coweta County, Ga., sheriff's deputy Timothy Scott used reasonable force in 2001 when he rammed his vehicle into a Cadillac he was pursuing during a high-speed chase. The driver, Victor Harris, who at the time was 19, had been targeted for speeding. Scott's maneuver was intended to end the chase, and it did. Harris' car careened down an embankment, leaving him paralyzed from the neck down. Harris sued, and Scott claimed he had qualified immunity -- which the 11th U.S. Circuit Court of Appeals denied him. . . . The qualified-immunity issue was barely mentioned as lawyers for both sides argued over the standards the high court has used in deciding whether police act reasonably when they use deadly force -- and even whether the standard is relevant to what happened to Harris. But what justices kept coming back to was the video of the six-minute chase, taken by dashboard cameras in the police cars involved. The grainy nighttime video, part of the public record in the case, shows the car reaching 90 miles per hour as it sped by other motorists under pursuit by the police.

Testing the line between despotism and a free society

By Scot Lehigh, Globe Columnist

2-27-07 -- HABEAS CORPUS is now headed back to the US Supreme Court, in a case that will prove a fundamental test of US justice. . . . Will the Roberts court uphold one of the oldest and most basic rights in the US Constitution -- that of a prisoner to go to court to challenge his imprisonment? . . . The issue could also test the courage of the new Congress. Will the Democratic majority wage a determined fight to re-establish what has been a basic guarantee of procedural rights? . . . Last week, the United States Court of Appeals for the District of Columbia Circuit framed the coming struggle by upholding the new Military Commissions Act, which strips those detainees of habeas rights. The Bush administration pressured Congress into passing that statue after the Supreme Court twice ruled that detainees at Guantanamo had habeas rights under US law. . . . The Constitution makes clear the importance the founders attached to habeas, saying: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

High Court Refuses to Consider Suit in Iraqi Slayings of Security Guards

Pete Yost, The Associated Press 

2-27-07 -- The Supreme Court on Monday declined to hear a lawsuit against a private security company stemming from the slaying of four of its guards by an angry mob in Iraq. . . . Blackwater Security Consulting LLC is trying to have the wrongful death case brought by the estates of the four men transferred from the North Carolina state court system to the federal courts. . . . By turning down Blackwater's request, the Supreme Court leaves the case in state court. . . . Blackwater's lawyers pointed to the potential implications of the case with "myriad federal contractors serving in Iraq and Afghanistan." . . . In a largely invisible cost of the war in Iraq, nearly 800 civilians working under contract to the Pentagon have been killed and more than 3,300 hurt doing jobs normally handled by the U.S. military, according to figures compiled by The Associated Press.

Parents Fight for the Right to Represent Their Children in Case Before High Court

Local bar associations have investigated parent-advocates for unauthorized practice of law

Tony Mauro, Legal Times

2-23-07 -- For Sandee and Jeff Winkelman, the money to pay lawyers ran out in 2004. But they still had their son Jacob to fight for, so they kept going on their own. . . . Jacob is their son, now 9 years old, who has autism. At one point for Jacob, says Sandee, "laying on the floor and screaming -- that was his day at school." . . . The Winkelmans wanted something better for Jacob, and on Tuesday, their battle against the Parma, Ohio, school district goes before the Supreme Court. But the justices won't be weighing the best plan for Jacob. Instead, they will decide whether nonlawyer parents such as the Winkelmans can represent their kids when disputes under the Individuals with Disabilities Education Act reach federal court. . . . If the Winkelmans lose, says Georgetown University Law Center professor David Vladeck, "it means these cases just can't be litigated -- not because they're not valid, but because they are brought by people of modest means. I hope the Court understands that." Vladeck has written extensively on the controversy.

A teen speeds. Police ram car. Who's at fault?

Opposing sides say the ruling on an upcoming Supreme Court case might encourage dangerous driving – or increased use of force.

By Warren Richey | Staff writer of The Christian Science Monitor

2-23-07 -- Victor Harris zoomed at 80 to 90 miles per hour in his Cadillac covering nearly nine miles in six minutes with a deputy sheriff hot on his tail. But when the chase ended in a violent crash that left the 19-year-old driver a quadriplegic, the roles reversed. . . . Now it is the deputy sheriff being pursued – by lawyers who say the officer violated the teen driver's constitutional rights when he forced the speeding Cadillac off the road. . . . Tuesday, Mr. Harris's case arrives at the US Supreme Court where the justices must decide whether drivers who speed and disobey police commands to pull over nonetheless are constitutionally protected against having their cars rammed by law-enforcement officials in high-speed chases. The Fourth Amendment prohibits police from using unreasonable tactics during arrests. . . . A ruling in the case could set national policy for the measures police can use in high-speed chases. . . . More than 350 individuals are killed each year in the US in crashes related to high-speed pursuits by law enforcement, according to the National Highway Traffic Safety Administration. The statistics show that in most instances – nearly 230 times per year – it is the fleeing suspect who dies. In contrast, roughly five police officers are killed each year in high-speed chases. The rest of the fatalities are bystanders, according to the NHTSA.

Logic vs. Nitpicking

Pittsburgh Tribune-Review Editorial

2-23-07 -- The Philip Morris case shows the allegedly best judges in the land shunning logic in favor of nitpicking. . . . The U.S. Supreme Court, 5-4, vacated a $79.5 million punitive damage award in a cigarette lung cancer death and sent the case back to Oregon for further proceedings. The issue chosen for review was not the size of the award, nearly 100 times compensatory damages, but a jury instruction. . . . The jury was allowed to compute punitive damages based on the "reprehensibility" of Philip Morris when it denied smoking was harmful while knowing that it was. But the jury was not instructed, as Philip Morris requested, that "you are not to punish the defendant for the impact of its alleged misconduct on other persons ... . "  . . . To Justice Steven Breyer, writing for the majority, the lower court denied Philip Morris due process.  . . . "A defendant threatened with punishment for

High Court Says Concealment of Assets Can Take Away Important Right in Bankruptcy

Pete Yost, The Associated Press

2-22-07 -- The Supreme Court ruled Wednesday that a financially troubled small-business man gave up an important right under the federal bankruptcy code because he failed to disclose all of his assets as the law requires. . . . In a 5-4 decision, the Court said Robert Marrama of Gloucester, Mass., could not convert his bankruptcy case from one chapter of the code to another, as the law ordinarily allows. . . . The reason, the Court said, stemmed from his failure to disclose a Maine vacation home placed in a trust. Marrama, who operated a flooring company, listed the value of his interest in the property as zero, according to papers in the case. . . . After finding out about the home, the bankruptcy trustee said he would recover the real estate for the benefit of Marrama's creditors. Marrama had attempted to convert his case from a Chapter 7 liquidation to Chapter 13, which allows a debtor to keep property and pay debts over time. . . . Writing for the majority, Justice John Paul Stevens said honest debtors possess an absolute right to convert their cases to Chapter 13, but that nothing in the law limits a court's right to take away that right for "fraudulent conduct."

Supreme Court Rules Against Man Wrongly Imprisoned

Mark Sherman, The Associated Press

2-22-07 -- A deadline is a deadline is a deadline, the Supreme Court said Wednesday in refusing to allow a man wrongly imprisoned for more than eight years to sue the police officers who arrested him. . . . Andre Wallace, whose murder conviction was overturned in 2002, waited several years too long to file his false arrest lawsuit, the Court said in a 7-2 ruling. . . . He had two years in which to file his civil rights lawsuit, which he began working on during the year after his release. The issue before the Court was when the two-year clock began to run. . . . Justice Antonin Scalia, writing for the majority, said the correct starting point is when a judge reviews the criminal charges against a defendant and bounds him over for trial. In Wallace's case, this hearing occurred in 1994, shortly after his arrest. . . . Wallace was a minor at the time, 15 years old, and Scalia said the two-year period did not begin until he became an adult, which is at 18 in Illinois. But even then, he said, "the suit was out of time."

Reining in juries

EDITORIAL – Los Angeles times

The Supreme Court rightly puts some limits on the awarding of outlandish punitive damages.

2-22-07 -- THE U.S. SUPREME COURT went further this week — though not far enough — in reining in juries in civil cases that award outlandish punitive damages. By a disappointingly narrow 5-4 vote, the justices overturned a jury's decision that Philip Morris should pay $79.5 million to the widow of a smoker who died of lung cancer. The value of her actual damages was only $821,000. . . . The justices could — and should — have ruled clearly that the $79.5-million award violated previous rulings that punitive damages may not be "grossly excessive" and should bear a reasonable relation to the harm actually experienced by the plaintiff. But in returning the case to the Oregon courts, the court did impose a sensible rule that should make it harder for juries to sock deep-pocket and easily demonized defendants. . . . Writing for the majority, Justice Stephen G. Breyer faulted the Oregon Supreme Court for allowing the jury to calculate punitive damages based not only on Philip Morris' "reprehensible" conduct in minimizing the health risks of smoking but also on the effect of its marketing on smokers not connected to the case.

High Court Rejects $79.5 Million Award in Philip Morris Case

Tony Mauro, Legal Times

2-21-07 -- The Supreme Court on Tuesday tossed out a $79.5 million punitive damage award won by a smoker's widow against Philip Morris, ruling that Oregon jurors improperly considered harm to other smokers in punishing the tobacco giant. . . . By a 5-4 vote, the Court said that a state violates the Constitution's due-process clause when it uses a punitive damage award to punish a defendant for injuries suffered by "strangers to the litigation," in the words of Justice Stephen Breyer, who wrote the majority opinion. . . . "A defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge," Breyer wrote. . . . Business advocates applauded the ruling as a major body blow, grounded in the Constitution, against high punitive damage awards.

Court clarifies false arrest right to sue

Posted by Lyle Denniston on SCOTUSblog

2-21-07 -- The Supreme Court ruled on Wednesday that an individual filing a civil rights lawsuit claiming a false arrest by police must sue within a time period that begins to run at the time of detention, not after any resulting conviction or sentence has been overturned. This requires plaintiffs to file considerably earlier than they would have preferred, and perhaps before their claim has matured. . . . Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. The case was Wallace v. Kato (05-1240). . . . In the only other decision on the merits, the Court ruled by a 5-4 vote that the right in the Bankruptcy Code to convert a Chapter 7 case into a Chapter 13 proceeding is not absolute, and may be forfeited. In the case of Marrama v. Citizens Bank of Massachusetts (05-996), the Court ruled thatg a Gloucester, Mass., man, Robert Louis Marrama, had forfeited his right to convert his bankruptcy case because he did not qualify as a debtor under Chapter 13.

Supreme Court won't review NYC ban on biblical scene

Menorahs OK for Christmas, but not Nativity

(AP) 2-21-07 -- The Supreme Court on Tuesday decided not to review a New York City policy that bans public school displays of nativity scenes but allows Santa Claus, reindeers, Christmas trees and symbols of Jewish and Islamic holidays. . . . The nation's highest court chose not to re-examine an appeals court decision against the claim filed by Andrea Skoros, a Roman Catholic mother of two sons who attended public schools. She first filed the case in 2002 in Brooklyn federal court. . . . Skoros had claimed that the city's policy promoted and endorsed the religions of Judaism and Islam and conveyed a message of disapproval toward Christianity. . . . The 2nd Circuit U.S. Court of Appeals concluded last year that no objective observer would believe it was the city's purpose to denigrate Christianity, even if the Department of Education erred in characterizing a Jewish menorah and an Islamic star and crescent as secular symbols. . . . Instead, the court said, the actual and perceived purpose of the holiday display policy was to use holiday celebrations to encourage respect for the city's diverse cultural traditions.

Justices won't lift reprimand of outspoken Mich. lawyer
By The Associated Press

2-21-07 -- The U.S. Supreme Court yesterday declined to hear attorney Geoffrey Fieger's appeal of a reprimand imposed by the Michigan Supreme Court for Fieger's vulgar comments about state judges. . . . Fieger, of Southfield, had argued that he had a First Amendment right to use radio appearances to criticize the appellate judges who overturned a $15 million medical-malpractice judgment he had won. . . . In August 1999, shortly after the decision to overturn the judgment, Fieger called them "three jackass Court of Appeals judges" on his radio talk show. He also likened them to Adolf Hitler and other Nazis and in a separate tirade, declared "war" on the judges and made crude remarks about them. . . . The Michigan Supreme Court voted 4-3 for the reprimand, saying the comments "were nothing more than personal abuse," not protected political speech. Fieger, who defended assisted-suicide advocate Jack Kevorkian, was the 1998 Democratic gubernatorial nominee.

A Hearing Without Being Heard

As Justices Take Case, Plaintiff Finds It Has Little to Do With Her Anymore

By Robert Barnes, Washington Post Staff Writer

2-19-07 -- Lilly M. Ledbetter says she almost stopped breathing when she heard her name called that day, her eight-year battle over alleged pay discrimination finally reaching the ultimate legal forum, the U.S. Supreme Court. . . . "We'll hear argument next in Ledbetter versus Goodyear Tire and Rubber Company," Chief Justice John G. Roberts Jr. announced. . . . The odds are akin to being struck by lightning, having your case plucked from the thousands of others who have vowed, like you, to take the fight all the way to the Supreme Court. And then you find it's not so much about you anymore. . . . It was the only time that November morning that any of the nine justices spoke Lilly Ledbetter's name.

Supreme Court will review New York state judge selection process

By Mark Sherman, Associated Press

2-19-07 -- The Supreme Court on Tuesday agreed to review whether New York state's method of picking trial judges violates the Constitution by giving too much power to political bosses. . . . Lower federal courts have ruled that the selection process, using political conventions instead of primaries to decide which candidates make the general election ballot, violates the First Amendment rights of candidates and voters. . . . The justices agreed without comment to consider the appeal from New York state election officials and the Democratic and Republican parties that a 1970s Supreme Court ruling allows states to choose between primaries and conventions for nominations to elected offices. . . . The case is expected to be argued in the fall.

Supreme Court to Hear Companion Worker Overtime Pay Lawsuit

J. Martin Acevedo, The Connecticut Law Tribune 

2-12-07 -- Affordability and higher quality of life are two of the most attractive attributes of nonmedical homecare for the elderly. For a reasonable hourly fee, a reputable homecare agency will place a properly trained, adequately screened and legally documented caregiver in the elderly consumer's home to assist him or her with activities of daily living and provide the much-needed companionship many seniors require. . . . Particularly in the case of around-the-clock help or "live-in" companions, agencies can make quality homecare affordable to seniors and still derive a modest profit in part because, under current law, "companion" workers are exempt from payment of overtime and minimum wage law under the Federal Labor Standards Act (FLSA). . . . A live-in companion is defined as a worker who, in exchange for a competitive per diem wage plus free room and board, agrees to be employed to provide around-the-clock care to his or her elderly client. Contrary to what some believe, live-in workers do not literally work 24 hours each day. Live-ins are entitled to eight hours of uninterrupted sleep and in many cases enjoy ample downtime during the day.

January 2007

1-30-07 -- THE U.S. SUPREME COURT astonished everyone in 2003 when it upheld the constitutionality of severe limits on political speech. The good news is that the court may be having some sober second thoughts about that dubious decision. . . . The speech-curtailing measure at issue is part of the broader McCain-Feingold campaign finance law. The centerpiece of that law banned "soft money" contributions to political parties that were used to circumvent limits on how much donors could contribute to candidates for federal office. What is glaringly offensive to the 1st Amendment is an accompanying ban on "electioneering communications" paid for out of the treasuries of independent organizations. . . . As defined by the law, electioneering communications are advertisements that mention a candidate for federal office and are broadcast within 30 days of a primary election or within 60 days of a general election. They need not (and usually do not) tell viewers to vote for or against a candidate.

Posted by: "Scott Phelps" scott.phelps@oh.f4j.us  

Fathers-4-Justice US is that army. Fight back! Go to http://www.f4j.us - find your state and fill out a contact form.

Let's Roll....Scott Phelps, Fathers-4-Justice US -- WWW.F4J.COM

High Court Eases Path for Inmates to Pursue Lawsuits

The Associated Press 

1-23-07-- A unanimous Supreme Court on Monday sided with three Michigan inmates by making it easier for them to pursue lawsuits complaining about their treatment behind bars. . . . The Court reversed lower court rulings that had thrown out the prisoners' suits on grounds that all three had failed to exhaust the administrative grievance procedure. . . . Chief Justice John Roberts said the procedural rules that the 6th U.S. Circuit Court of Appeals used in the cases are not required under the Prison Litigation Reform Act. The law requires prisoners to go through a lengthy administrative grievance process before they may sue in court. . . . Roberts said the Michigan inmates are not required to demonstrate that they have exhausted the administrative complaint procedure. The chief justice said nothing in Michigan prison policy requires that an individual be named in an administrative grievance. . . . The Supreme Court is "not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prison suits ..., needles from haystacks," Roberts wrote.

High Court considers tax authority case

By Mark Sherman, Associated Press Writer

1-22-07--Foreign countries fighting New York City's effort to collect property taxes will get the chance to make their case to the Supreme Court. . . . The justices said Friday they will review a lower court ruling allowing the city to sue countries that own property near the United Nations over unpaid taxes. . . . The city has battled over property taxes for years with countries that house their consulates and diplomatic missions in Manhattan skyscrapers. . . . Under U.S. treaties, embassies and other diplomatic buildings are generally tax-exempt, but the city claims some countries are refusing to pay taxes on real estate used for non-diplomatic purposes, such as restaurants and apartments. . . . Two countries sued by the city, India and Mongolia, had argued that sovereign immunity meant they couldn't be sued in U.S. courts. . . . The 2nd U.S. Circuit Court of Appeals ruled last April, affirming a lower-court decision, that federal courts have the power to resolve such disputes. The case is Permanent Mission of India v. New York, 06-134.

Financing terrorists is not about speech

The high court is right: Prosecuting alleged contributors to a 'terrorist' group isn't a 1st Amendment issue.

L.A. TIMES EDITORIAL

1-22-07--THE SUPREME COURT has rightly refused to block the trial of seven Los Angeles residents accused of contributing funds to an Iranian opposition movement that the State Department has branded a terrorist group. . . . The high court let stand a ruling by the U.S. 9th Circuit Court of Appeals that prosecuting the defendants — who are innocent until proved guilty — posed no 1st Amendment problem. As Judge Andrew J. Kleinfeld pithily put it: "Sometimes money serves as a proxy for speech, and sometimes it buys goods and services that are not speech. Guns and bombs are not speech." . . . In 1997, then-Secretary of State Madeleine Albright designated the Marxist group Mujahedin Khalq, or MEK, as a "foreign terrorist organization," a designation reaffirmed in 1999. Formed in the 1960s to oppose the rule of the shah of Iran, MEK now opposes the Islamic regime in Tehran and, according to the State Department, engaged in terrorism against Iran between 1997 and 2001.

Court Rules for Gov't in Deporation Case

1-17-07 -- (AP)--The Supreme Court sided Wednesday with U.S. immigration authorities who want to deport a man convicted in a car theft case. . . . In a near-unanimous decision, the court said immigration law provides for removing someone convicted of aiding and abetting a theft offense when the term of imprisonment is at least one year. . . . A theft offense is an aggravated felony under federal immigration law, making someone deportable. . . . Luis Alexander Duenas-Alvarez, a Peruvian immigrant, was sentenced to three years in prison after pleading guilty to a state theft charge in California. . . . The 9th U.S. Circuit Court of Appeals ruled that Duenas-Alvarez's conviction did not qualify as an aggravated felony under immigration law.

Decision in Gonzales v. Duenas-Alvarez, No. 05-1629,
can be accessed online at this link.

Insurance Companies Under Fire in Consumer Credit Case Before High Court

Pete Yost, The Associated Press

1-17-07 -- Several Supreme Court justices seemed taken aback Tuesday at the idea that insurance companies might be required to notify tens of millions of customers they aren't getting the best rates because of their credit reports. . . . In making the argument for notification, lawyers for consumers said two insurance companies -- GEICO and Safeco -- violated the Fair Credit Reporting Act by failing to send customers notices of adverse decisions made because of their credit reports. . . . The case casts a spotlight on the business world's vast credit reporting system, which has compiled files on 200 million Americans. . . . Congress passed the credit-reporting act in 1970 to protect consumers from flaws in the system and improve the reliability of reports. . . . At issue is a decision a year ago by the 9th U.S. Circuit Court of Appeals in San Francisco that would make it easier for consumers to prevail when they sue corporations for failing to notify them.

Supreme Court Refuses to Hear Two IBM Employment Cases

Christopher S. Rugaber, The Associated Press

1-17-07 -- The Supreme Court on Tuesday refused to consider an appeal brought by a group of IBM Corp. employees who accused the company of age discrimination when it altered its pension plan. The lawsuit could have cost the company $1.4 billion. . . . The Court also declined to rule on a separate dispute between IBM and a former employee who accused the company of retaliating against him after he complained about how company managers handled overtime. . . . In the pension case, a former IBM employee named Kathi Cooper served as the lead plaintiff in a class action suit brought on behalf of 250,000 current and former IBM workers. The suit argued that IBM's "cash balance" pension plan was discriminatory because it allowed younger workers to accrue benefits in the plan at a faster rate than older workers. . . . IBM switched to a cash balance plan in 1999. Such plans provide workers with individual accounts that can be cashed out when they leave the company and are intended to appeal to younger workers who are more likely to switch jobs.

High Court Turns Down Case Over Government Taking Land for Redevelopment

The Associated Press

1-17-07 -- The Supreme Court on Tuesday refused to consider a property rights case involving a redevelopment project in New York state where businessmen are fighting local government efforts to take their land. . . . The businessmen say the village of Port Chester, N.Y., filed a condemnation petition to acquire their property the day after the businessmen rejected what they said was a demand by the project developer for $800,000. . . . The developer allegedly was demanding the money or a 50 percent interest in the businessmen's own project to put a CVS Pharmacy on the site. . . . In response to the action by Port Chester, property owner Bart Didden and his partners sued, saying the condemnation was purely for private financial gain and not for a public purpose. . . . A federal judge and the 2nd U.S. Circuit Court of Appeals say the property owners waited too long to complain in court.

Supreme Court Shows an Anti-Union Hand

Tony Mauro, Legal Times

1-11-07 -- The Supreme Court struck a new anti-union note Wednesday during oral arguments that pointed toward a ruling against the Washington state teachers union in a First Amendment dispute over how it should collect fees from nonmembers. . . . At issue in Davenport v. Washington Education Association and Washington v. Washington Education Association is a 1992 state ballot initiative that requires unions to ask nonmembers to affirmatively "opt in" to pay the portion of agency fees that go toward the union's political activities. . . . A long line of Supreme Court cases currently allows unions to collect agency fees, equivalent to union dues, from nonmembers, on the theory that collective bargaining and other union activities benefit nonmembers as well as members. In a 1986 ruling, the Court indicated that unions must provide a fair way for nonmembers who pay the fee to "opt out" of paying the portion of the fee that goes toward political activities. Unions are fighting the "opt-in" alternative, which they fear will result in far fewer teachers giving support to unions' First Amendment activities. . . . The tenor of the argument Wednesday appeared to be so strongly anti-union -- Justice Stephen Breyer was the only justice who voiced sympathy for the union -- that so-called right-to-work advocates say it may mark a major turning point in the Supreme Court's labor doctrine.

High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced

The Associated Press 

1-10-07 -- The Supreme Court on Tuesday turned down a convicted rapist's plea to reduce his prison sentence, without deciding whether the Court's 3-year-old ruling on prison sentences applies to older cases. . . . The justices said in an unsigned opinion that Lonnie Lee Burton's appeal had procedural problems that should have prevented it from being heard in the first place. . . . Burton had asked the Court to cut his 46-year prison term by 21 years. The sentence was imposed by a judge in Washington state in 1998, but Burton's lawyer said the 2004 ruling limiting judges' discretion in handing out prison time should apply to Burton's case. . . . Washington and 18 other states disagreed. . . . Tuesday's court action was unusual only in that the justices accepted Burton's case in June and heard argument in November before determining that lower courts had been wrong to consider the merits of Burton's appeal. Even so, those courts had ruled against him.

Supreme Court Upholds Conviction of Man Arrested at Mexican Border

Mark Sherman, The Associated Press 

1-10-07 -- The Supreme Court on Tuesday upheld the conviction of a man caught trying to enter the United States illegally in a case that initially was seen as a test of whether a flawed indictment could violate a defendant's rights. . . . But in an 8-1 opinion, the Court said that the indictment of Juan Resendiz-Ponce itself was sound. The indictment "did not deprive him of any significant protection that the constitutional guarantee of a grand jury was intended to confer," Justice John Paul Stevens said. . . . Resendiz-Ponce, a Mexican national, sought to persuade the justices that there was a problem so serious in his indictment that it warranted reversing his conviction. Justice Antonin Scalia, the lone dissenter, agreed. . . . Resendiz-Ponce was charged with attempting to enter the country illegally after he was arrested at the border crossing at San Luis, Ariz., on June 1, 2003. He presented his cousin's green card and driver license to U.S. authorities.

Court rules on right to bring patent case

Posted by Lyle Denniston at 10:03 AM

1-9-07 -- The Supreme Court ruled on Tuesday that a person or firm that has been licensed to use a patent need not break that agreement before suing to challenge the patent's valildity or to defend against a claim of infringement. The 8-1 decision came in the case of MedImmune v. Genentech (05-608). . . . The Court rejected the argument -- accepted by Justice Clarence Thomas in dissent -- that MedImmune could not sue because it had voluntarily entered into a license deal and was making all necessary royalty payments. Justice Antonin Scalia wrote for the Court. . . . MedImmune is a biotech company that makes and markets the only drug in the U.S. used to prevent a particular respiratory tract infection caused by virus, a condition that may be fatal. The drug is marketed under the trademarked name Synagis. In 1997, one year before the company first put the drug on the markiet, it agreed to license a group of patents from another biotech company, Genentech, Inc., in return for paying royalties if it sold any product covered by one of the patents.

High Court Agrees to Hear Coca-Cola Race Discrimination Appeal, Endangered Species Case

Pete Yost, The Associated Press 

1-8-07 -- The Supreme Court on Friday agreed to consider a discrimination case in which a Coca-Cola bottling company fired a black employee, one of seven cases the Court added to its docket. . . . Coca-Cola asked the Supreme Court to hear the lawsuit, which involves allegations that a supervisor of employee Stephen Peters was motivated by racial bias and influenced a human resources manager to fire the worker. . . . Such circumstances are sometimes referred to as "cat's paw" or "rubber stamp" liability. Coca-Cola fired Peters for insubordination after he refused a request to work on a weekend during his scheduled days off. . . . A federal appeals court reinstated a lawsuit brought on Peters' behalf by the Equal Employment Opportunity Commission. The appeals court said a federal judge placed too much emphasis on the fact that Peters' immediate supervisor made no express recommendation to fire him. . . . In asking the Court to hear the case, the company asked the justices to consider when an employer may be held liable for intentional discrimination when the person who fired an employee harbored no discriminatory bias. Peters worked at the Coca-Cola facility in Albuquerque, N.M. . . . The case is BCI Coca-Cola Bottling Co. of Los Angeles v. EEOC, 06-341.

Supreme Court Takes Case That Could Chill Shareholder Suits

The Associated Press

1-8-07 -- The Supreme Court on Friday agreed to consider a case that could make it more difficult for stockholders to pursue allegations of securities fraud. . . . The lawsuit involves shareholder accusations that Tellabs Inc. and some of its officers and directors inflated Tellabs' stock price by improperly booking revenue and issuing false revenue projections. . . . Tellabs, based in Naperville, Ill., manufactures equipment for the telecommunications industry. . . . The case is Tellabs Inc. and Richard Notebaert v. Makor Issues & Rights Ltd., 06-484.

SCOTUS News & Views Fall 2006

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