Acting on the basis of secret documents and a closed-door hearing, a federal judge on Wednesday ruled that a Yemeni detainee at Guantanamo Bay — identified in news accounts as the government’s “star witness” against other detainees — is legally entitled to be released from captivity.  In a one-page order, found here, U.S. District Judge Ellen Segal Huvelle granted the habeas plea of Yasin Muhammed Basardh, 33.

Early in February, in the most complete news story so far about Basardh as an informer, the Washington Post quoted him as saying during an earlier military hearing: “I am cooperative to the point where my cooperation with everyone has led many people threatening my life…I have put my life in danger and therefore I cannot go back to my own country…They will not hesitate to kill me or anyone in my family.”

That story and its revelations stirred a storm of controversy among the judges in the D.C. District Court, who are handling some 200 detainees’ cases. The story indicated that some of Basardh’s military handlers had grown uncertain about the reliability of his information.

Judge Huvelle held a closed-door hearing Tuesday in Basardh’s case with lawyers for both sides, and afterward issued her release order. Basardh’s lawyers had filed a motion for a ruling on his plea for release, and the government had responded, but the judge noted that those documents remained classified. She also gave no public reasons for her action, saying only that she had done so during the “sealed” hearing.

Her order directed government officials to “take all necessary and appropriate diplomatilc steps to facilitate the release of petitioner Basardh forthwith.”  This is the first time Judge Huvelle has ordered a Guantanamo prisoner to be released.  Presumably, Basardh will remain at Guantanamo until the U.S. government finds a place to resettle him.

Basardh also had gained some additional notoriety in detainee legal circles, because the D.C. Circuit Court used his challenge to military detention as the vehicle for a ruling last November, signaling that one layer of detainee challenges — before the Circuit Court — would soon be closed down, in the wake of the Supreme Court’s decision last June giving detainees’ a constitutional right to challenge their captivity in habeas cases in District Court.

Stanford student Beverly Moore previews Polar Tankers v. City of Valdez, which is to be heard tomorrow morning at 10am. Additional information and filings are available from SCOTUSwiki, here. Please note that the Stanford clinic wrote the cert. stage brief in opposition.

The Tonnage Clause, U.S. Const., Art. I, § 10, Cl.3, prohibits states or municipalities from “laying a duty of tonnage,” which is defined as a fee imposed “upon a vessel, according to its tonnage, as an instrument of commerce, for entering or leaving a port, or navigating the public waters of the country.” On April 1, in No. 08-310, Polar Tankers v. City of Valdez, Alaska, the Court will consider (1) whether the Tonnage Clause prohibits a municipal personal property tax that falls on large vessels using the municipality’s harbor, and (2) whether a municipal personal property tax assessed on property with an out-of-state domicile violates the Commerce and Due Process Clauses when the assessment includes time spent by the property on the high seas or otherwise outside any State’s taxing jurisdiction.

This case stems from a tax enacted by Valdez, Alaska, which is located on Prince William Sound at the south end of the Trans-Alaska Pipeline System. Each year, oil tankers load hundreds of millions of barrels of crude oil at the City’s port. In 1999, the City extended its property tax to apply to “boats and vessels of at least 95 feet in length” that are neither used “primarily in some aspect of commercial fishing” nor “dock at privately owned docks in the City.” The tax is calculated by multiplying a vessel’s total assessed value by a ratio that is in turn determined by dividing the number of days spent in Port Valdez by the total number of days it spends in all ports with taxing authority. The City resolution approving the tax also allows a taxpayer to petition for a different apportionment method if the default method “does not reasonably represent the portion of the total value of the vessel that should be” attributed to the City.

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The transcript of oral argument in Gross v. FBL Financial Services, Inc. (08-441) is available here.

The Court has released three opinions today.

The Court has released the opinion in Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372), on the state’s authority sell state lands. The decision below, which held for the Office of Hawaiian Affairs, is reversed and remanded in a unanimous opinion by Justice Alito, available here.

The Court has released the opinion in Rivera v. Illinois (07-9995), on the weight on a conviction of an erroneous juror seating.  The decision below, which held for the state, is affirmed in a unanimous opinion by Justice Ginsburg, available here.

The Court has released the opinion in Philip Morris USA, Inc. v. Williams (07-1216),  on tobacco punitive damages. In a per curiam opinion, available here,  the writ of certiorari is dismissed as improvidently granted.

The Supreme Court chose on Tuesday, after examining the issue for the third time, not to disturb a punitive damages verdict now totaling more than $150 million, won by the widow of a heavy smoker who died of lung cancer.  The Court dismissed a new appeal by Philip Morris USA, saying it had “improvidently granted” review last June.  The case, heard on Dec. 3, was Philip Morris USA v. Williams (07-1216). 

This was one of three actions the Court took to resolve the merits of pending cases.  It decided unanimously that a criminal conviction need not always be overturned if a juror was wrongly seated after being opposed by a defense lawyer’s peremptory challenge. The Court declared, in Rivera v. Illinois (07-9995), that such an erroneous seating is not such a serious trial error that it cannot be excused as “harmless.”  States are free to decide on their own what consequences follow such an error in assembling a juror, Justice Ruth Bader Ginsburg wrote for the Court.

In a second ruling, the Court unanimously restored the power of the state of Hawaii to sell off lands it acquired on becoming a state, in the case of Hawaii v. Office of Hawaiian Affairs (07-1372). The decision, written by Justice Samuel A. Alito, Jr., overturned a ruling by Hawaii’s Supreme Court that the state could not sell more than 1.2 million acres of its land until it resolved claims to the land by native Hawaiians. The decision was an interpretation of the 1993 federal law, marking the 100th anniversay of the U.S. government’s overthrow of the royal government of Hawaii.  The law apologized for that affront, the Court noted, but did not create any private rights that override the state’s sovereign power to dispose of the lands handed over to it by the federal government when Hawaii achieved statehood in 1959. Any claims to the land by native Hawaiians are to be resolved under state law, Justice Alito wrote.

The Philip Morris case had become something of a judicial minuet between the Supreme Court and the Oregon Supreme Court, with the Justices twice telling the state tribunal — in 2003 and 2007 — to reconsider the punitive verdict that had been $79.5 million but, with interest accumulating, has perhaps doubled.

The state Supreme Court, in its latest decision in January of last year, once more upheld the verdict of favor of the widow, Mayola Williams.  It did not need to consider the constitutional questions the Supreme Court had returned to it, the state court said, because it now found an adequate basis under state law for sustaining the verdict.  That basis was a finding that Philip Morris had erred in seeking a jury instruction.

Philip Morris then returned to the Supreme Court, arguing that the state court had defied the Justices’ mandate in 2007 to reconsider the constitutional validity of the verdict.  It argued that the state court could not use a newly minted procedural bar to reopen a punitive verdict after the Supreme Court had required it to apply a constitutional rule to judge the award. It also contended that and out-of-proportion award cannot be justified on the theory that the company’s conduct was so reprehensible as to override the constitutional right to have a proportional limit on such damages.

The Court, in granting review last June 9, agreed to hear only the first point — that is, whether the state court was wrong in invoking a procedural bar, for the first time, to sustain the jury’s award.  That is the issue the Justices said on Tuesday they had erred in agreeing to decide it.  The Court issued no opinion beyond a one-sentence dismissal, issued “Per Curiam” (by the Court) rather than in the name of a Justice.

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At 10 a.m., the Court may release the opinion in one or more pending cases. Following the release of any opinions, the Court will hear argument in Gross v. FBL Financial Services (08-441), on the level of proof required in a “mixed motive” job bias case.

Eric Schnapper of Seattle will argue for the plaintiff, Jack Gross. Lisa S. Blatt, Assistant to the Solicitor General, will argue for United States  as amicus curiae supporting the petitioner for 10 minutes. Carter Phillips of Sidley Austin in Washington will argue for FBL Financial Services.

For a second time, Supreme Court Justice Anthony M. Kennedy has refused to interfere with a San Francisco local ordinance that sets minimum health benefits for workers.  In a brief order, Kennedy denied an application (08A824) by restaurant operators in the city to delay a Ninth Circuit Court ruling that had upheld the city ordinance on mandated health spending.  The Justice acted without issuing an opinion in Golden Gate Restaurant Association v. San Francisco.

Justice Kennedy refused in February of last year to forbid the city and county to continue enforcing the local ordinance being challenged, then and now, by the Golden Gate group. (Kennedy acted then on application 07A654.  The new application is 08A824.) 

 Since Kennedy last acted, the ordinance has been upheld by the Ninth Circuit, in a ruling Sept. 30 rejecting a claim by the Association that the city-county law is preempted by federal worker benefit law (ERISA). On March 9, the en banc Ninth Circuit denied review, over the dissents of eight of the full Court’s judges.

On Tuesday morning, the Court will hear argument in Gross v. FBL Financial Services, Inc., No. 08-441, a case regarding the burden of proof in “mixed motive” cases under the Age Discrimination in Employment Act (ADEA).  The Court granted certiorari on the question “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” One of the most significant issues to have arisen during the briefing in this case – and sure to be a subject of significance at oral argument – is whether the Court should limit itself to that question or decide, instead, a much broader question of much greater significance – namely, whether to overrule its decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and hold instead that the plaintiff must always bear the burden of proof in mixed motive cases. The employee-petitioner will be represented by Eric Schnapper of the School of Law at the University of Washington.  The employer-respondent will be represented by Carter Phillips of Sidley Austin, LLP. [Disclosure: I consulted with petitioners in this case.]

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The transcript of oral argument in Travelers Indemnity v. Bailey (08-295) is available here.

The Supreme Court on Monday stepped into the middle of a basic constitutional controversy involving the Court’s occasional role as a trial court: When one state sues another directly in the Court rather than starting the case in a lower trial court — a maneuver the Constitution allows in a special category of so-called “Original” cases — who else can join in?  That is the issue that the Court said it would consider at a hearing in South Carolina v. North Carolina (138 Original), probably in the new Term that starts Oct. 5.

At the core of the controversy is a basic question of whether states are going to be allowed to speak for the interests of their own citizens — the people, the local governments, and the companies that exist within their own borders.

In most cases, a plea by an outsider to a lawsuit to get involved — that is, technically, to intervene — is a mundane matter of little interest beyond the specific dispute. But the Carolinas’ case has stirred up a dispute over that procedure, and it has drawn in the U.S. government, arguing that the Court should not dilute the representative capacity of states by too readily allowing those who are not states to assert their own interests separately in an Original case.

In a brief filed last month, the U.S. Solicitor General joined South Carolina in resisting a recommendation by a Special Master who is processing the case to allow the city of Charlotte, N.C., plus an interstate water supply organization and a hydroelectric power company, Duke Energy Carolinas, to enter the case as parties.  Special Master Kristin Linsley Myles, in a report formally filed in January, urged the Court to allow all three to intervene.  It is that report, an interim recommendation in this water-sharing dispute, that the Court will consider at oral argument.

The Special Master sought to craft a rule on participation that would apply to most if not all Original cases filed in the Court.  But the Solicitor General ridiculed the suggestion as “a single, one-size-fits-all rule” that would apply not only to cases involve disputes over river-sharing, but to “any other subject,” and that goes too far to allow outsiders in.

The government lawyers argued that the proposed approach to intervention ”does not take adequate account of the special sovereign interests that are stake” in a dispute between states over uses of the waters of a river that runs through each of them and from which each draws water for its citizens’ use.  While the brief focuses on intervention in such a water apportionment controversy, and finds the Special Master’s approach particularly troublesome in that context, the filing also amounts to a fervent argument for caution in allowing parties other than states themselves to take a direct part as the Court tries interstate lawsuits.

Because of the breadth of the underlying constitutional question, it would be no surprise if the case were to draw a number of friend-of-court briefs.

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The Supreme Court granted no new cases on Monday as it issued its latest orders.

The Court said it would hear oral argument, presumably at its next Term, on a report by a Special Master on the pending dispute between the two Carolina states (South Carolina v. North Carolina, 138 Original) over water flows in the Catawba River.  The report by Special Master Kristin Linsley Myles is an interim recommendation that the Court allow non-state parties to join in an Original case as intervenors.  Thus, it does not deal with the merits of the controversy over dividing up allotments of the Catawba’s waters.  The dispute over intervention is sufficiently significant that the U.S. Solicitor General has joined in the case as an amicus. The Court allowed South Carolina to file its lawsuit on Dec. 1, 2007.

 Among issues turned aside, the Court refused to hear the state of Virginia’s plea to revive its Anti-Spam Act — a law, similar to a federal statute and to laws in other states, making it a crime to conceal one’s identity in sending out thousands of unsolicited commercial e-mails. The state’s highest court struck down the law (formally named the Transmission of Unsolicited Bulk Electronic Mail Act).  The case was Virginia v . Janes (08-765).

The Court also refused, as it has several times before, to reconsider its 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank, requiring an individual or company challenging a government takeover of property to try first to get compensation in state court before pursuing a constitutional “takings” claim in federal court. The new denial came in Agripost LLC v. Miami-Dade County (08-567).

Also rejected was a plea by the former police chief in Dallas, Terrell Bolton, that the Court clarify when a city or county can be held legally to blame for actions of local policymaking officials.  Bolton was fired by the city manager.  There is a split in the Circuit Courts on how to define local government liability for actions of officials who have final local authority.  The new case was Bolton v. City of Dallas (08-704).

The Court granted certiorari in no cases today. The orders list is available here.

At 10 a.m., following the announcement of any orders, the Court will hear one hour of argument in the consolidated cases Travelers Indemnity v. Bailey (08-295) and Common Law Settlement Counsel v. Bailey (08-307), on a bankruptcy court’s power to bar related lawsuits. Barry R. Ostrager of Simpson Thacher & Bartlett  in New York will argue for the Travelers Indemnity Company. Samuel Issa­charoff of New York will argue for respondents Cascino Asbestos Claimants and Jacob C. Cohn of Philadelphia will argue for respondent Chubb Indemnity Insurance Company.

On Monday,  the Court will release the remaining orders from the Justices’ private conference last Friday.  Following the release of any orders, the Court will hear argument in the consolidated cases of:

• Travelers Indemnity v. Bailey (08-295) and Common Law Settlement Counsel v. Bailey (08-307), on a bankruptcy court’s power to bar related lawsuits.

On Tuesday, the Court may release the opinion in one or more pending cases. Following the release of any opinions, the Court will hear argument in:

• Gross v. FBL Financial Services (08-441), on the level of proof required in a “mixed motive” job bias case.

On Wednesday, the Court may release the opinion in one or more pending cases. Following the release of any opinions, the Court will hear argument in;

• Polar Tankers v. City of Valdez (08-310) , on the validity of the city’s property tax on large vessels from out-of-state that use its harbor.

The Justices will hold a private conference on Friday, orders from which could be released that afternoon. To view our list of petitions to watch at Friday’s conference, click here.

No briefs on the merits are due this week.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on April 3. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

Docket: 08-818
Title: Adena Regional Medical Center, et al., v. Charles E. Johnson, Acting Secretary of Health and Human Services
Issue: In calculating the Medicare disproportionate share hospital  adjustment, must the Secretary of Health and Human Services include all patient days attributable to patients who are eligible for medical treatment under an approved State Medicaid plan or only those patient days for which a hospital actually receives payment from the Medicaid program?

• Opinion below (DC Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply brief

Docket: 08-822 ; 08-948
Title: McLaughlin v. Missouri ; Anderson v. Louisiana
Issue: Whether Apprendi applies to the weighing of aggravating and mitigating evidence at the penalty phase of a capital trial and if a state law requiring the defendant to prove the greater weight of the mitigating evidence violates the Eighth and Fourteenth Amendments.

• Opinion below (Supreme Court of Missouri)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply brief
  
• Brief amici curiae for Legal Academics

• Opinion below  (Supreme Court of Louisiana)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner

Docket: 08-985
Title: Coushatta Tribe of Louisiana, v. Meyer & Associates, Inc
Issue: Are state courts required to apply and follow the Tribal Exhaustion Doctrine and can a Native American tribe be forced to litigate claims in a state court when an ostensible waiver of sovereign immunity is not valid under that tribe’s law?

• Opinion below (Supreme Court of Louisiana)
• Petition for certiorari
• Brief in opposition