Below, Georgetown 3L and 2008 Akin Gump summer associate Michael Bonsignore previews Locke v. Karass, scheduled to be the second of three cases heard by the Court on Monday, October 6th. Please check back with SCOTUSwiki following oral argument for additional updates.

Background

This case addresses whether a public-sector union may include litigation costs, funded through pooling arrangements with other unions, in the service fee it charges nonmembers.  The Maine State Employees Association (“MSEA”) is a union designated by the State of Maine as the exclusive bargaining agent for certain employees of its executive branch.  Petitioners are twenty current or former executive branch employees who do not belong to, but are nonetheless represented in collective bargaining by, the MSEA.  Under MSEA’s collective bargaining agreement with the state, MSEA provides certain administrative services and benefits for all employees, including nonmembers, and can charge nonmembers a “service fee” or an “agency fee” that includes costs arising from bargaining and contract administration.  Expenditures unrelated to contract administration and bargaining, such as political contributions or member-only benefits, may not be included in the service fee charged to nonmembers. 

In 2005, MSEA notified the nonmembers that their biweekly service fee would be $8.94, approximately forty-nine percent of the dues paid by members.  The service fee included the affiliation fee MSEA pays to the Service Employees International Union (“SEIU”) to maintain its affiliate relationship and the proportion of its affiliation fee that “represented the expenditures incurred by SEIU for chargeable activities.”  MSEA also included in the service fee both its own litigation costs and those of SEIU that were germane to collective bargaining.  As a practical result, therefore, MSEA nonmembers contributed not only to litigation undertaken for their own bargaining unit but also to litigation for the benefit of other units or national affiliates. 

Petitioners challenged the service fee.  The matter went to arbitration, and in December 2005, an arbitrator issued a decision upholding MSEA’s calculation of the service fee.  Petitioners also filed this case in federal district court pursuant to 42 U.S.C. § 1983, seeking class action status, injunctive and declaratory relief, damages, and restitution.  They argued that the inclusion of extra-unit litigation costs violated their rights under the First, Fifth, and Fourteenth Amendments.  After discovery, the district court granted summary judgment in favor of the respondent union and state officials, finding that “the inclusion of the cost of extra-[unit] litigation d[id] not violate[] Plaintiffs’ constitutional rights.”

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The Supreme Court will not be releasing any orders today on actions taken at Monday’s opening Conference.  Readers are advised to check daily at 10 a.m. 

The Court is in the final week of the summer recess. Oral arguments are scheduled to resume Monday, October 6. To view the list of arguments scheduled thus far, visit our case list on SCOTUSwiki.

The following column, featuring a selected petition up for consideration at the Justices’ opening conference, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for today’s conference, click here.

The Constitution grants defendants the right to a jury trial in all criminal cases. But when it comes to the details, the Framers were conspicuously silent.

While the Sixth Amendment requires that juries be locally drawn, it says nothing about how many members must serve, how they should be selected, or how convinced they must be to find a defendant guilty.

In its first conference of the upcoming term, the Supreme Court will consider whether to grant review in a case involving perhaps the most fundamental, and most widely assumed, aspect of jury trials: whether all members must unanimously agree to render a verdict. (The conference is scheduled for Sept. 29, and a decision is likely to be announced Sept. 30. The petition is No. 07-1523, Lee v. Louisiana.)

The justices have answered the question before, in a splintered decision in the early 1970s, holding that states could permit juries to convict or acquit defendants by as few as 10 votes. But in a naked appeal to overrule precedent, the petitioner—accompanied by five amicus briefs, including one from the American Bar Association—asks the justices to restore a unanimity requirement that had previously extended back to the Middle Ages.

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Congratulations to Kannon Shanmugam, who is leaving the Office of the Solicitor General after four years to become a partner at Williams & Connolly.  Appropriately, Kannon’s first day at Williams & Connolly is October 6 — i.e., the first Monday in October.

The Court will hold its opening conference of the upcoming term on Monday, where, in addition to the hundreds of petitions that have amassed during the summer recess, the Court will consider the petition for rehearing in Kennedy v. Louisiana (07-343). To view our list of petitions to watch at Monday’s conference, click here.

The Justices are expected to release orders from the conference later in the week. We will provide coverage of all developments, as well as a copy of the orders list, via our Live Blog. (Note: this post originally reported that orders would be released Tuesday at 10 a.m. Eastern.)

Supreme Court preview panels will be hosted on Thursday by Legal Momentum, the American Civil Liberties Union, and the Federalist Society. For details on the panels, click here.

No merits briefs for petitioners are due this week. Merits briefs for respondents are due Monday in Chambers v. United States (06-11206), Entergy Corp. v. EPA (07-588) (and consolidated cases), Arizona v. Johnson (07-1122), Bell v. Kelly (07-1223), and Haywood v. Drown (07-10374), and Tuesday in Philip Morris USA, Inc. v. Williams (07-1216) and Knowles v. Mirzayance (07-1315). (Links direct to case pages on SCOTUSwiki.)

In the final brief to be filed before the Supreme Court decides whether to reconsider a major ruling on the death penalty, the state of Louisiana cautioned the Justices not to make the issue depend solely upon the Court’s own constitutional perceptions, arguing that Congress and the state legislatures are entitled to their say, too. 

“This Court has never resorted to its independent judgment alone to void a punishment under the Eighth Amendment,” the state’s lawyers said in a supplemental brief filed in Kennedy v. Louisiana (07-343).  The Court, at the request of Louisiana, is pondering whether to rehear its June 25 decision striking down the death sentence for the crime of raping a child.

The Justices are scheduled to consider the rehearing petition at their private Conference on Monday.  If rehearing is granted, word of that may become known as early as next Tuesday.  A denial might not become known until Monday, Oct. 6, at the formal opening of the new Term.

In reaching its decision at the end of last Term in Kennedy, the Court used its own “independent judgment,” but also relied upon a finding that there is a “national consensus” among policymakers and legislatures against that penalty for that crime.  Louisiana, joined by the Justice Department, has sought to cast doubt on the ruling, but especially on the second part of that equation, saying that the Court overlooked recent action by Congress and the President in allowing the death penalty for child rape as a matter of military criminal law.

“The recent action by Congress and the President,” Louisiana’s new brief argued, “evince their independent judgment that the death penalty is appropriate for child rape.  Such decisions are relevant not only as indicia of national consensus, but also because they inform this Court’s own judgment about what is cruel and unusual.” Quoting from a decision by the Justices last Term, the brief added: ” ‘The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one…’ “  (That is a quote from Boumediene v. Bush.)

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UPDATE 5:17 p.m.

The Supreme Court blocked the scheduled execution Tuesday evening in Georgia of Troy Anthony Davis, giving itself time to consider his appeal challenging his conviction for the murder of an off-duty police officer in Savannah.  The stay order is here.  It was issued about two hours before the execution was to be carried out.

The Court is to consider Davis’ petition for review (08-66) at its Conference next Monday.  The stay of execution will be lifted automatically if review is denied, the order said.  If review is granted, the stay will remain in effect until the case is decided.

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The Georgia Supreme Court refused on Monday to delay the scheduled execution this evening of Troy Anthony Davis, ruling that his fate is now up to the U.S. Supreme Court.  The execution is scheduled for 7 p.m. tonight at a prison facility in Jackson, GA.  The state Surpeme Court order is here, and is discussed in this press release from that Court.

Davis’ lawyers have a stay application (08A241) pending at the Supreme Court.  The Court is also expected to consider a new appeal by Davis at its Conference on Sept. 29.  Davis, on death row for killing an off-duty police officer in Savannah, contends in his petition (available here) that he is entitled to a hearing on his claim of innocence, contending that most of the witnesses against him at his trial have changed their stories since then (Davis v. Georgia, 08-66).

Congratulations to Malcolm Stewart, the veteran Assistant to the Solicitor General, who has been promoted to (and has officially started work as) a Deputy Solicitor General.  Stewart fills the slot vacated earlier this year by Tom Hungar.

Our previous post from late May on Mr. Hungar’s departure can be found here.

Arguing that the federal government was seeking “boundless” authority to regulate wetlands miles away from flowing waterways, an Alabama company and two of its executives on Monday urged the Supreme Court to turn aside a new government appeal on the issue.  The brief, filed in U.S. v. McWane, Inc. (08-223), suggests with some sarcasm that “the government intends to honor no interpretation that this Court might give the [Clean Water Act] unless the government wins.”

Lower courts have split on how to interpret and apply the Supreme Court’s splintered decision in 2006 in Rapanos v. U.S.  Three different interpretations of the Clean Water Act’s provisions on protecting wetlands emerged from that ruling, and lower courts have disagreed about which one controls.  The Justice Department last month appealed the McWane case from the Eleventh Circuit Court, asking the Justices to clear up the confusion.  (A post discussing that appeal can be read here.)

That case involves the criminal prosecution of a Birmingham, Ala., pipe making company and its general manager, James Delk, and plant manager, Michael Devine. They were convicted of CWA violations for allegedly polluting wetlands with discharges of process water from the plant.  Heavy fines were imposed, but no prison terms.  The Eleventh Circuit Court overturned the convictions, rejecting the government view of the CWA’s scope, and ordered a new trial.

The company and its two managers took two steps on Monday: they filed a brief opposing review of the government appeal, and they filed an appeal of their own seeking to head off a new trial.  Their own appeal was offered for review if the Court decided to hear the government appeal in 08-223.  (Their opposition brief is here, and their conditional cross-petition is here.  The cross-petition is McWane v. U.S., 08-364.)

Repeaedly lambasting the government’s arguments, the brief against review of that appeal said that the prosecutors had put forth a “boundless knee-bone’s-connected-to-the-thigh-bone approach to the definition of navigable waters.”

But the main legal thrust of the response is that there is no need — at least not yet — for the Court to step in to try to resolve confusion over the Rapanos decision.  “No court of appeals in the two years since Rapanos has concluded that the interpretation urged by the government would alter the outcome on the facts before it.”  The government, it said, had raised “a question that, even if answered in its favor, would not affect the outcome of this or possibly any other case.”

In their own appeal, the company and its managers contended that, since the government failed to produce sufficient evidence to get a conviction, it would be a violation of the “Double Jeopardy Clause” to stage a new trial.

The two cases have not yet been scheduled for a Conference of the Justices.

A case that a federal judge described as “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years” is bound, ultimately, for the Supreme Court.  Lawyers involved in the case, after filing a request for rehearing en banc in the D.C. Circuit Court on Friday, said that, if that fails, they will appeal to the Justices.

 Even a ruling by the en banc Circuit Court seems unlikely to end the case without Supreme Court review, given the importance of what is at stake.  The case also is deeply enmeshed in the ongoing controversy over limits on presidential power, and, especially, the President’s authority over independent federal agencies.

The case involves the constitutionality of a key part of a 2002 federal law — the Sarbanes-Oxley Act, named for its legislative authors — that was passed in the wake of the Enron and Worldcom accounting scandals. The aim of the law is to protect investors from such scandals in publicly traded companies in the future by regulating the firms that do their accounting  The Act created a new entity, the Public Company Accounting Oversight Board (PCAOB) to do the regulating.

The five members of the Board — a private board that exercises government powers — are not appointed and cannot be removed by the President. They are named by the Securities and Exchange Commission, which has limited removal power.

In the case of Free Enterprise Fund, et al., v. PCAOB, the Fund — a private advocacy group promoting limited government — along with a Nevada accounting firm that is regulated by the Board — challenged the constitutionality of the new regulatory body.  The D.C. Circuit, in a spolit decision on Aug. 22, upheld the Board’s makeup.

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A slight amplification on Lyle’s thorough post below:

Lyle writes that “[i]f Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene – challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo. ”

I think this is not quite right. What Judge Hogan held in the Latif case, fairly unremarkably, is simply that section 7(a)(2) of the MCA strips courts of power to consider GTMO detainees’ claims challenging conditions of confinement and transfers, and that the Supreme Court’s Boumediene decision did not resolve the constitutionality of section 7(a)(2).

Judge Hogan did not address whether and to what extent challenges to conditions or transfers are constitutionally protected (in habeas or otherwise) and, if so, whether section 7(a)(2) is constitutional, because the petitioner did not raise that constitutional argument. Indeed, Judge Hogan’s order in the “unknown” case that DOJ is complaining about in Kiyemba was expressly predicated on the need to “protect [the court’s] jurisdiction to determine the constitutionality of section 7(a).”

In other words, Judge Hogan has yet to decide whether and to what extent the conditions and transfer claims are constitutionally protected, notwithstanding MCA section 7(a)(2).

UPDATE:  Readers may note that the following contains materials from an earlier post on Monday, titled “Narrow reading of Boumediene.”  The following is a complete rewrite to take account of other significant developments on Monday.

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The Justice Department, three days before a crucial hearing in the D.C. Circuit Court on a sequel to the Supreme Court’s June 12 decision in Boumediene v. Bush. told the Circuit Court Monday that “it appears the district courts are now going to bar any transfer of a Guantanamo detainee.”  In view of that, the letter said, the Circuit Court should rule expeditiously — perhaps with an order even before preparing an opinion.

The letter was filed in the combined cases that begin with Kiyemba v. Bush (Circuit docket 05-5487), scheduled for a 40-minute hearing on Thursday morning.  That is one of a series of pending cases in which the Justice Department is arguing that District judges hearing habeas challenges authorized by the Supreme Court in Boumediene have no authority to bar the transfer of prisoners out of Guantanamo Bay to other countries.  It argues that Congress took away all such power, if courts ever had it, in 2006.  It also argues that any such order intrudes on the constitutional power of the President to control the ocnduct of detainee affairs.

What prompted the Department’s letter Monday was an order issued by Senior District Judge Thomas F. Hogan at a date that is blacked out in a case that is blacked out, blocking the government from transferring a Guantanamo prisoner — deleted – to another country — also deleted.  (The Department letter, with the Hogan order attached, can be found here.)

Judge Hogan’s order, the Department’s letter said, “provides a very tangible example of how, under such orders [barring transfer], all bilateral arrangements regarding the transfer of detainees are made contingent upon court approval.”  The prospect that no such transfers will be allowed while the transfer authority issue is under review in the courts, the Department said, “counsels in favor of this Court’s expeditious resolution of the current appeals.  We believe that in this context, if possible, this Court should resolve the key issues as soon as possible after oral argument and, if necessary, issue an order disposing of the issues prior to a full opinion.”

The Hogan order at issue was one of three by him that emerged on Monday.  In two others, as part of his role in overseeing some 200 Guantanamo Bay detainee cases, the judge ruled that the courts have no authority to hear challenges to the conditions of confinement at the Naval prison on the island of Cuba. Those orders relied on the same act of Congress in 2006 that the Department cited in its Circuit Court letter contending that District judges may not bar detainee transfers.

In those two orders, Judge Hogan gave a narrow interpretation of the Supreme Court’s Boumediene ruling.   Hogan found that the Military Commissions Act of 2006 had taken away all authority of federal courts to examine “transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.”  The Supreme Court did not nullify that provision in Boumediene, Hogan wrote, so the courts “have no jurisdiction” over detainees’ pleas over the conditions of their imprisonment at Guantanamo.  One of the detainees sought access for his lawyers to his medical records and sought a blanket and mattress in his cell at Guantanamo; the other detainee sought uncensored copies of records and staff reports regarding his medical problems — he has had seizures.

If Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene – challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo.  The orders can be found here and here.

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The Supreme Court on Monday released a new calendar for oral argument in the October sitting.  The only change is that the argument in Oregon v. Ice (07-901) has been moved up one day. Instead of being heard at 1 p.m. on Wednesday, Oct. 15, it will be heard at the same hour on Tuesday, Oct. 14.  The revised calendar is here.  The case tests whether consecutive sentences imposed by a judge violate the right to a jury trial.

In July, Kevin discussed his filing of a petition in Flores-Figueroa v. United States (08-108), a case involving the knowledge requirement in the federal statute covering ‘aggravated identity theft.’  Last week, in its brief in response, the government conceded a “clear and entrenched” conflict existed over the proper interpretation of the law.  The Justice Department recommended that the Court grant cert to resolve the conflict, albeit in another case that presents the same issue, Mendoza-Gonzalez v. United States (08-5316) (petition, brief in response).

Both cases involve undocumented aliens charged with violating the ‘aggravated identity theft’ provision of 18 USC 1028A(a)(1), after they provided their employers with Social Security numbers that happened to belong to other individuals. The law sets a mandatory two-year sentence for anyone who, in connection with other specified crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The source of the conflict is the word “knowingly” – namely, whether the government must prove defendants were aware the Social Security number they used belonged to another person. Three circuits have said prosecutors must make such a showing, while another three circuits – including the Eighth Circuit in both Flores-Figueroa and Mendoza-Gonzalez – have ruled otherwise. The issue, unsurprisingly, arises frequently with undocumented aliens who, to secure employment, purchase or simply make up Social Security numbers that may or may not have already been assigned.

Both petitions are scheduled to be distributed on October 1 for consideration at the October 17 conference. In advance of distribution, Kevin expects to file a reply brief in Flores-Figueroa.

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

On Wednesday, the state of Louisiana is to file a brief of up to 4,500 words expressing its views on the merits of the issue raised its petition for rehearing in Kennedy v. Louisiana (07-343), the opinion striking down use of the death penalty for child rape. The Court’s briefing order is available here, and a post containing the briefs filed last week by Kennedy and the United States is available here.

Supreme Court preview panels will be hosted on Monday by Georgetown University Law Center, on Tuesday by the U.S. Chamber of Commerce, and on Wednesday by the American Constitution Society. For details on the panels, click here.

No merits briefs for petitioners or respondents are due this week.

The federal judge overseeing some 200 detainees’ cases on Friday gave the government added time to supply its reasons for holding the prisoners and refused to impose any punishment for delays up to now, but warned that his patience may be growing thin.  At the same time, however, he gave an implied endorsement of a major new role for the Central Intelligence Agency — a role that, according to the Justice Department, is the major factor in slowing down the official responses.

Senior U.S. District Judge Thomas F. Hogan stretched out by 30 days the first deadline for the Justice Department to file its initial “returns” – the technical name for its justifications of detention.  The first 50 such returns are now due by Sept. 30, a month later, and 50 more will be due each month until all have been filed.  The judge’s order is here, and his opinion explaining that order is here.

The Justice Department, with apologies, had asked for the 30-day extension of filing time, saying the task of assembling the returns was bigger than it had thought it would be – especially since the CIA is performing a central role in examining the draft returns to see if government secrets might get out.   Judge Hogan had set the schedule that the government proposed, but just before that deadline was up, it asked for the added month.

Detainees’ lawyers countered with requests to Judge Hogan to refuse even to consider the extension request, to deny it, or, perhaps, to begin imposing some punishment in order to deter the possibility of further delays.

Judge Hogan, while saying he was “disappointed” in the failure to meet that deadline, added that, “at this juncture,” he was “not convinced that the scope and nature of the sanctions [detainees] propose are warranted to ensure that the government will meets its future obligations…”

The judge went on to say he was not just setting a “goal” that the government would “strive” to meet — words that he took from the government’s plea for more time.  The 50-a-month schedule must be met from now on, he said, and cautioned that he “will not tolerate any further delay.”

Several parts of the judge’s opinion indicated that he had focused on a still-secret memo filed by CIA Director Michael Hayden on the need to proceed carefully so as not to risk disclosures of secrets about how the government obtained information about detainees.  It was clear, in the context of the order, that the judge was accepting the key role that CIA was now playing, and was deferring to it.

The Justice Department has made a similar request for more time to file returns in the two dozen cases being handled by a different District judge, Judge Richard J. Leon.  That judge had several times told Justice Department lawyers that, if the process was slowed down, he would summon government officials to his courtroom to explain in person.

UPDATE Tuesday a.m.   The case has been docketed as 08-368.

Lawyers for the only detainee seized in the U.S. under presidential order and still in military captivity urged the Supreme Court on Friday to rule that no federal law and no part of the Constitution allows the President to order such detentions. 

The en banc decision by the Fourth Circuit Court upholding such power, the new petition argued, “cast a pall over the physical liberty of all persons in the United States….Neither liberty nor democracy is served when the people, and their legislators in Congress, labor in doubt about the elementary ground rules on an issue of such paramount national importance.”

The appeals court ruling, it added, “grants the executive discretion to displace the constitutional protections of the criminal justice system, including the right to speedy presentment, confrontation, and trial by jury, merely by alleging a connection to possible terrorist activity.  The lower court has replaced settled and historic protections with confusion.”

The petition in Al-Marri v. Pucciarelli can be downloaded here.  The multiple opinions of the en banc Circuit Court (a file of 216 pages) is available at this link.

The appeal was filed on behalf of Ali Saleh Kahlah Al-Marri, a Qatari national who was living legally in the U.S. when arrested at his home in Peoria, Ill., Dec. 12, 2001, and later declared by President Bush to be an “enemy combatant,” and turned over to the military.  The petition raises this single question:

“Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?”

The Fourth Circuit split 5-4 in July in findiing that the AUMF — the anti-terrorism resolution passed by Congress soon after the Sept. 11, 2001, attacks — gave the President the power to seize and hold terrorism suspects living in the U.S.  A separate 5-4 vote held that Al-Marri was entitled to a new opportunity in federal court to challenge his detention.  (A post discussing that ruling can be read here.)

The petition argued that the Supreme Court should review Al-Marri’s case now, not wait for any further challenge his lawyers mount in U.S. District Court in South Carolina.  (He is being held at the U.S. Navy brig in Charleston.)  Those proceedings, the petition said, “cannot resolve the core, threshold legal question” of domestic military detention power.

If the Court agrees to hear the case, it would take the Justices well beyond four major recent rulings arising out of the “war on terrorism,” confronting issues of domestic power of the U.S. military and of the President as Commander in Chief.   The appeal appears to have been filed in time for the Court to act on its in the next Term, with a decision before next summer if review is granted.

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