The Supreme Court on Friday added five new cases to its decision docket for the current Term, including a test of the constitutionality of a federal campaign finance ban as applied to a critical movie about Sen. Hillary Clinton when she was running for president (Citizens United v. Federal Election Commission, 08-205). The Court also agreed to decide whether the Constitution requires an elected state judge to step aside from deciding a case involving the financial interests of a major campaign donor (Caperton v. A.T. Massey Coal Co., 08-22).

In the other three cases, all focusing on criminal law issues, the Court will decide whether an individual can be retried on charges on which a jury could not agree in an earlier trial in which the jury acquitted on other charges (Yeager v. U.S., 08-67), whether using a telephone or e-mail to buy drugs for personal use converts that minor possession crime into a felony, with heavier penalties (Abuelhawa v. U.S., 08-192), and whether a federal law imposing an enhanced sentence for firing a gun during a drug crime or other violent crime applies if the gun was fired accidentally or involuntarily (Dean v. U.S., 08-5274).

The cases probably will be argued in the session that begins Feb. 23 and continues through March 4.

The new campaign finance case involves a plea by a conservative advocacy group, Citizens United, to create a new exception to a 2002 law’s ban on radio or TV ads that corporations and labor unions air close to election time, so that the ban would not apply to a feature-length movie aimed at a candidate for President or for Congress.  The appeal also urges the Court to strike down the 2002 law’s disclosure requirement for election-season broadcast ads when those ads are not subject to the ban itself. And it seeks to test whether a 2003 Supreme Court decision bars all challenges to the law’s disclosure requirements, even if the challenge is an as-applied claim.

The ban at issue in the case is the so-called “electioneering communications” provision of the Bipartisan Campaign Reform Act of 2002.  It bars corporations (including non-profit firms) and labor unions from using their own treasury funds to finance ads naming a federal candidate, if the ad appears on radio or TV 30 days before a primary election or nominating convention or 60 days before a general election.

Citizens United had prepared a film, titled “Hillary: The Movie,” and it released it to theaters and for store sales on DVD. It did not go forward with plans to put out the movie in TV-on-demand access on cable TV, because it feared the FEC would apply the ad ban to it.  A federal District Court ruled that the movie about Sen. Clinton was the kind of radio and TV broadcast that ran afoul of the ban, interpreting it as a call to voters not to support her because she was unfit for the presidency.  Citizens United also prepared a similar critical film about Sen. Barack Obama, titled “Hype: The Obama Effect,” and it, too, was released during the campaign.

Even though the presidential and congressional elections this year are over, Citizens United’s appeal to the Supreme Court appears to be still a live one because the group has indicated it plans to prepare and air such films in future campaigns.  The FEC did not contend that the Court lacked jurisdiction to hear the appeal, and on Friday the Court simply “noted probable jurisdiction,” indicating that it agreed it had authority to decide the case.

The BCRA provisions requiring disclosure, all being challenged in the appeal, require any corporation or union spending more than $10,000 a year to produce or air the kind of ad covered by the law must reveal to the FEC the names and addresses of anyone contributing more than $1,000 for the ad.  Another provision requires that, if an ad is not authorized by a candidate or political committee, the broadcast must also say who is responsible for its content, and provide the name and address of the group behind the ad.

The District Court said the Supreme Court’s 2003 decision in McConnell v. FEC, upholding many of the provisions in the BCRA law, upheld those disclosure requirements even if a particular radio or TV ad would not be banned under that law, and thus no new challenges to these requirements were allowed.

The other new election-related case is a test of whether the Constitution’s guarantee of “due process” requires the disqualification of a judge who has accepted sizeable donations from an individual or firm involved in a case that comes to that judge’s court.  Some state courts have ruled that due process requires a recusal both for actual bias or the appearance of bias, while others have ruled that only proof of actual bias in favor of the campaign donor’s interests is sufficient to require recusal.

The appeal targets a West Virginia Supreme Court justice, Brent D. Benjamin, who chose to sit on a case before that court testing a $50 million jury verdict against a company whose chief executive officer had provided more than 60 percent of the total spent on Benjamin’s campaign for a seat on the state’s highest court.  The appeal granted review on Friday is by the founder of a group of West Virginia coal companies that were competitors in coal sales to A.T. Massey Coal Co., Inc., whose chairman was the campaign donor, Don L. Blankenship.  The state Supreme Court overturned the jury verdict against the Massey firm, by a 3-2 vote with Justice Benjamin in the majority.

The new case on retrial of charges on which a jury had been unable to reach a verdict gives the Court a chance to elaborate on a 1970 decision, Ashe v. Swenson. The Court ruled there that the Fifth Amendment’s ban on double jeopardy includes the doctrine that an issue once raised and litigated cannot be raised in a later case — the doctrine of “collateral estoppel” or “issue preclusion.”  The Court said that prosecution is barred if it would involve relitigating ultimate factual issues that were decided against the prosecution in an earlier trial.

The Court had before it three appeals, all involving former executives of an Enron Corp. subsidiary, Enron Broadband Services, a telecommunications firm. The three executives were charfged with seeking to deceive the public in order to drive up Enron’s stock prices by making false statements about EBS’s progress and financial condition.  The Court, in granting review, chose the case of F. Scott Yeager, a former EBS executive.  He was acquitted of several charges, but the jury could not agree on others.  He attempted to block re-trial of the charges on which the jury had been unable to agree, contending that the jury could only have found him not guilty on other charges by determining a necessary element of the other charges.   The Circuit Courts are split on whether retrial is barred in that situation.

The Supreme Court also faced a conflict among Circuits on the issue involved in purchasing drugs for personal use by using a communications device.  The appeal is by an Alexandria, Va., man, Salman Khade Abuelhawa, who was overheard by federal agents when he used a cellphone to arrange to buy cocaine from a dealer.  He was charged with a felony on the theory that his use of the cellphone “facilitated” the dealer’s drug trafficking; buying drugs for personal use, however, is normally a misdemeanor.

The newly granted firearms case involves a federal law imposing a mandatory minimum ten-year sentence for someone who fired a gun during a violent crime or a drug trafficking crime. The lower courts are split on whether than enhanced sentence applies if the gun carrying while committing such a crime goes off accidentally, rather than intentionally.

The case involves a Georgia man, Christopher Michael Dean. He and another man, Ricardo Curtis Lopez (who filed a separate appeal), were prosecuted on charges of robbing a bank in Rome, Ga., in 2004. After their convictions of robbery and firing a gun, they were sentenced to enhanced prison terms — Dean’s total sentence was 220 months and Lopez’s was 198 months. While one of the men was removing cash from a teller’s drawer, the gun he was carrying went off, and the bullet hit a wall panel.

Posted in Abuelhawa v. U.S., Citizens United v. FEC, Caperton v. A.T. Massey Coal Company, et al., Dean v. U.S., Yeager v. U.S., Uncategorized