[Disclosure: Lawyers associated with Akin Gump and Howe & Russell represent the petitioner in Magwood.]

The full order list is here.  Details and briefs for the cases acted on are below the jump.

Docket: 09-158
Title: Magwood v. Culliver
Issues: Limited by the Court to this first question only: When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Docket: 09-1
Title: Holy See v. Doe
Issue: Whether the FSIA’s tort exception confers jurisdiction when the tortious act itself falls outside the scope of employment but state law extends vicarious liability based upon non-tortious precursor conduct falling within the scope of employment.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Docket: 08-1263
Title: Wong v. Belmontes
Issue: Does the Sixth Amendment right to effective counsel in the penalty phase of a capital trial require counsel to present and explain evidence in support of an alternative theory that is inconsistent with his client’s testimony and that would likely open the door to previously excluded evidence that the defendant had personally committed another murder?

• Opinion below (9^th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder.  The unsigned ruling in Wong v. Belmontes (08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night. The “Per Curiam” ruling — decided without formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

The Court refused, in a Nevada case, to reopen the constitutional controversy over students’ religious speeches at public school graduation ceremonies.  It denied without comment a student’s appeal in McComb, et al. v. Crehan, et al. (08-1566).  The Court also declined to hear a civil liberties group’s challenge to the Miami school board’s decision to ban from public school libraries a children’s book about life in Cuba — a ban that followed protests from the local Cuban-American community.  That case was ACLU of Florida v. Miami-Dade County School Board (08-1564).

In another order, the Court – in a case involving six “Redskins” trademarks owned by the pro football team in Washington — refused to clarify when a challenge may be made to an existing trademark.  The question raised in Harjo, et al. v. Pro-Football, Inc. (09-326) was whether such a challenge may be made at any time, or whether it must be pursued without delay.  The D.C. Circuit Court ruled that if a challenger waits years to contest a mark, the doctrine of “laches” bars the claim, thus turning aside the claim that the “Redskins” marks were illegal because they were disparaging to Native Americans.  The Circuit Court found that a group of Native Americans had waited at least eight years before formally moving to get the six trademarks cancelled.

The new habeas case that the Court will hear involves an Alabama death-row inmate, Billy Joe Magwood of New Brockton.  He was sentenced to die for murdering a county sheriff in front of the county jail.  He has long suffered from paranoid schizophrenia, and believed that the Army had sent him orders through a surgically implanted device that the sheriff and other authorities were interfering with completion of his “mission.”

After an original death sentence for Magwood was overturned in 1986, he was again given a death sentence following a new proceeding in state court.  After state courts rejected his challenge to the new sentence, Magwood’s lawyers filed for federal habeas, contending that he had had no notice that a state court ruling adverse to his case would be applied retroactively, and thus to his case.  A federal judge ruled in his favor, but the Eleventh Circuit Court overturned that result.  The Circuit Court ruled that the claim of a lack of fair warning was a second or successive habeas claim, and thus was barred.  The claim could have been raised at Magwood’s initial sentencing, that court decided.

In taking the case on to the Supreme Court, Magwood’s counsel argued that habeas petitions brought against new sentences should be treated as initial, first challenges when an inmate has succeeded in winning a chance for a new sentence.  Oral argument of the case is likely to be in March.

The Vatican case in which the Court invited the U.S. Solicitor General to weigh in on an attempt by the Holy See to head off a damages lawsuit in federal court in Oregon over alleged sexual abuse by a parish priest in Portland in 1965 and 1966.  The lawsuit was filed by an individual identified in court papers only as “John V. Doe.”  The lawsuit claimed that the Foreign Sovereign Immunities Act, which normally shields foreign governments from damage claims in U.S. courts for official actions, allows such a case to go forward if a government was responsible for one of its employees’ conduct, taken as part of their regular work. 

The Vatican is formally a foreign government.  The Ninth Circuit Court ruled that the “John Doe” lawsuit could go ahead, relying on an Oregon law that makes an employer responsible for an employee’s misconduct, if the employee had been placed in a position that later led to the wrongdoing — even when the wrongdoing itself was outside the scope of the employee’s job.

The Supreme Court will await the federal government’s response before deciding whether to hear the case and rule on it.  There is no deadline for the Solicitor General’s response.

Three Justices filed a separate statement saying the case “highlights once again the perversity of executing inmates before their appeals process has been fully concluded.”  Justices John Paul Stevens wrote the statement, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.  The statement, however, pointedly added that those Justices did not dissent from the Court’s refusal to hear Muhammad’s legal claims.

Muhammad is scheduled to be executed at 9 p.m. Tuesday.

(UPDATE: For anyone who had trouble with the links below before, they are now working.)

Docket: 09-400
Title: Staub v. Proctor Hospital
Issue: In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition

——————

The Supreme Court on Monday added no new cases to its decision docket.  It asked for the federal government’s views on the so-called “cat’s paw theory” in employment law — testing the liability of an employer if an employee discriminates but is not the one who makes the actual decision to fire or deny a promotion.  The Court had agreed previously to hear the issue, but that case ended without a ruling.  The new case is Staub v. Proctor Hospital (09-400).  There is no deadline for the Solicitor General to respond.

The “cat’s paw theory” is traced back to a 17th Century French poet and his story about a monkey who persuaded a cat to pull chestnuts out of a fire, only to be burned in the process.  For years, federal courts have been divided on how to apply that theory in employment discrimination cases.  In January 2007, the Court had agreed to sort out the issue in the case of BCI Coca-Cola Bottling v. Equal Employment Opportunity Commission (06-341).  But that case ended in April of that year when the two sides agreed to have it dismissed.

Since that time, the Court has refused to hear three other cases seekng to raise the issue, including one in which the Seventh Circuit Court had laid down its own strict limitation on the “cat’s paw theory.”  That Circuit Court has held that the motives of a company official or employee other than the formal decision-maker cannot subject an employer to liability, unless the biased individual had so dominated the decision-maker as to be the functional decision-maker personally.

All 12 of the regional Circuit Courts have confronted the issue repeatedly.  The case on which the Justices on Monday sought the federal government’s views involves Vincent E. Staub of Peoria, Ill., who lost his job as a medical technician at Proctor Hospital after prolonged disputes with supervisors over the time he spent to fulfill his duties as a member of the Army Reserve.  He contended that his immediate supervisors resented his military service, and ultimately arranged to get him fired by a higher hospital executive.

Although Staub complained of discrimination under the federal law that assures job protection for members of the military services, his petition said that the provisions of that law are similar to protections available under the Family and Medical Leave Act, the Pregnancy Discrimination Act, the Americans with Disabilities Act, and some federal civil rights laws.  Lowers courts have assumed that the standard they use on the “cat’s paw theory” is the same for all of these statutes, as well as for job bias cases involving public employers under the Constitution.

In the Court’s summary decision Monday — that is, a decision on the merits, without full briefing and oral argument — the Court overturned a decision of the Sixth Circuit Court on the standards to be used in determining whether a defense lawyer was ineffective in the sentencing phase of a death penalty case.  In the ten-page, unsigned decision in Bobby v. Van Hook (09-144), the Court sternly cautioned lower courts not to apply rigidly the American Bar Association’s guidelines on when a lawyer performs inadequate professional services. 

The opinion was sharply critical of the Sixth Circuit for treating the ABA’s 2003 guidelines “as inexorable commands with which all capital defense counsel must fully comply.”  Repeating what it had said earlier on the issue, the Court said the ABA’s views were “only guides.”

In a separate opinion, Justice Samuel A. Alito, Jr., was even more harsh in his reaction to the ABA’s views. While he said the ABA “is a venerable organization with a history of service to the bar,” it was “after all, a private group with limited membership.”  Its views, he added, did not necessarily reflect the views of the American bar “as a whole.”  So, he concluded, the ABA guidelines on lawyers’ performance should not have “special relevance” on the performance question.

His views were something of a reminder of conservative critiques of the often-liberal positions the ABA takes on legal questions.  The former Bush Administration, in a similar reaction to the ABA on the separate question of federal judicial appointments, denied the ABA any special advisory role in evaluating potential nominess for such judgeships although the Association had long exercised that role. The Obama Administration has resumed a reliance on the ABA’s evaluations of potential federal judges.

A post discussing the consent agreement is here. In U.S. District Court, the case is Northwest Austin Municpal Utility District No. One v. Holder (06-1384).

Section 5 requires state and local government units that had a priority history of racial discriminaton in voting to get clearance in Washington to make any changes in their election laws or procedures.  The Texas utility district (sometimes known as “NAMUDNO,” took its constitutional challenge to the Supreme Court last Term; the Court decided it by giving a broader reading to the provision that allows some government units to “bail out” from Section 5.  That is what NAMUDNO has now been allowed to do, after government findings that it has not discriminated in voting at least for the past ten years.

The three-judge Court was composed of Circuit Judge David S. Tatel and District Judges Paul L. Friedman and Emmet G. Sullivan.   That Court had rejected the constitutional challenge to Section 5; the case then went on to the Supreme Court, ending without a constitutional ruling.

Mon., Jan. 11:

Alabama v. North Carolina (132 Original) — interstate dispute over enforcement of regional pact on disposal of radioactive wastes; responses to Special Master’s report

Briscoe v. Virginia (07-11191) — scope of crime lab analysts’ role in a criminal trial; sequel to Melendez-Diaz v. Massachusetts, on Sixth Amendment Confrontation Clause rights

Tue., Jan. 12:

U.S. v. Comstock (08-1224) — constitutionality of prolonged imprisonment of sex offenders after sentences completed

Abbott v. Abbott (08-645) — parents’ rights under Hague Convention on child custody

Wed., Jan. 13:

American Needle v. National Football League (08-661) — antitrust liability of pro sports leagues for joint commercial activity

Jerman v. Carlisle (08-1200) — legal error as an excuse for violation of debt collection law

Mon., Jan. 18 — Legal holiday; no arguments

Tue., Jan. 19:

Mac’s Shell Service v. Shell Oil (08-240) and Shell Oil v. Mac’s Shell Service (08-372) — franchise operators’ right to sue over non-renewal of contract; cases consolidated for one hour of argument

Granite Rock Co. v. International Brotherhood of Teamsters (08-1214) –federal courts’ authority to interpret labor union contract on arbitration

Wed., Jan. 20:

Berghuis v. Smith (08-1402) — make-up of jury pool to reflect cross-section of the community

Conkright v. Frommert (08-810) — release of workers’ claims under ERISA

The Court  invited briefs from the Solicitor General in four more cases, listed below the jump.

The full order list is here.

Docket: 08-998
Title: Hamilton, Chapter 13 Trustee v. Lanning
Issue: The Court limited the question presented to the following: “Whether in calculating the debtor’s ‘projected disposal income’ during the plan period, the bankruptcy court may consider evidence suggesting that the debtor’s income or expenses during that period are likely to be different from her income or expenses during the pre-filing period.”

• Opinion below (10th Circuit)
• Petition for certiorari
• Amicus brief of the United States (recommending that cert. be granted)

Note: Akin Gump now represents the respondent in this case.

Docket: 08-1457
Title: New Process Steel v. National Labor Relations Board
Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the U.S. Chamber of Commerce

Docket: 09-223
Title: Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc.
Issue: Does either the Tax Injunction Act, 28 U.S.C. § 1341, or comity principles bar federal court jurisdiction over a case alleging federal equal protection and dormant commerce clause claims when the plaintiffs do not challenge their own tax assessment and the relief sought is directed to specific tax exemptions or exclusions applicable to only four other taxpayers?

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief for 29 states

The Court has invited the Solicitor General to submit briefs in the following cases:

Docket: 09-34
Title: Pfizer Inc. v. Abdullahi et al.
Issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.

• Opinion below (2d Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Chamber of Commerce of the United States of America
• Brief amici curiae of Washington Legal Foundation et al.

Note: Neither Chief Justice Roberts nor Justice Sotomayor took part in this order.

Docket: 08-1438; 09-109
Title: Sossamon v. Texas; Cardinal v. Metrish
Issue: Whether states and state officials may be subject to suit for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§2000cc to 2000cc-5?

For 08-1438:

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Rutherford Institute
• Amicus brief of the National Association of Evangelicals

For 09-109:

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Note: Howe & Russell represents the petitioners in both cases.

Docket: 09-115
Title: U.S. Chamber of Commerce v. Candelaria
Issues: Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens”; whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary; whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of aliens.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed.  The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964.  Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure.  The case was U.S. v. Seale (certified question, docket 09-166).

The Court also asked for the U.S. Solicitor General to provide the views of the federal government on four new cases. When the responses come in, the Court will then decide whether to hear any of those cases — including a major test case on the power of states to pass their own laws to bar illegal aliens from getting jobs in those states.

The tax case the Court will hear — Levin v. Commerce Energy, Inc., et al. (09-223) — is a test of whether the federal Tax Injunction Act and the separate concept of “comity” out of respect for state governments permit lawsuits in federal court that arguably would intrude on state tax systems.  The specific question is whether a state taxpayer may sue the state in a U.S. court if the taxpayer seeks to contest the fairness of tax breaks that others get but the challenger does not.

In one of the other newly granted cases — New Process Steel v. National Labor Relations Board (08-1457) — the Court will decide whether it is illegal for the NLRB to make decisions with only two of its allotted five members partipating.  The third new case is Hamilton v. Lanning (08-998), a bankruptcy case in which the Court may clarify the formula that bankruptcy courts are to use in deciding how much a debtor, filing under Chapter 13 to set up a repayment plan without losing property, has available to pay creditors who hold no security. The Court rewrote the question it will decide. (Disclosure: The law firm of Akin Gump represents the debtor in the case, Stephanie Lanning of Topeka, Kan.) The Court previously had asked for the views of the Solicitor General, who urged the Court to hear the case to resolve conflicting rulings among lower courts.

The Guantanamo case that the Court chose to pass up involves a Yemeni national, Yasin Muhammed Basardh, who won a court order for his release more than seven months ago, but remains confined at the U.S. military prison in Cuba (Basardh v. Gates, et al., 08-10982).  The release order is being challenged by the Obama Administration in the D.C. Circuit Court, but Basardh’s lawyers asked the Justices to hear the case in advance of any ruling in the lower court.  The Justices declined to do so without giving any explanation — the usual procedure when review is denied.  In the Circuit Court, Basardh’s case is being held in abeyance until the Supreme Court rules on another case, already granted, on federal judges’ power to order releases from Guantanamo (Kiyemba, et al., v. Obama, et al., 08-1234).  That case is likely to be argued in February or March.

The illegal alien worker case on which the Justices solicited the federal government’s views is U.S. Chamber of Commerce, et al. v. Candelaria, et al. (09-115).  That petition tests an Arizona law that imposes severe penalties on employers for hiring non-citizens who do not have a legal right to be in the U.S.  Business groups contend that such state laws, growing in number, intrude on the federal government’s power to set immigration policy.

In two cases that will go to the Solicitor General for a reaction, Sossamon v. Texas, et al. (08-1438) and Cardinal v. Metrish (09-109), the Court is being asked to decide whether state governments and state agency officials are immune to money damages under federal law if they violate the religious freedom of prison inmates (the law is the Religious Land Use and Institutionalized Persons Act, passed in 2000).   The cases could pose a major test of Congress’s use of its powers under the Constitution’s Spending Clause to protect the rights of individuals, without intruding on state sovereignty.  (Disclosure: the law firm of Howe & Russell represents the two prison inmates involved in the cases — Harvey Leroy Sossamon III, in Texas and Gerald William Cardinal, in Michigan.)

The Court, with two Justices not participating, also asked the Solicitor General to express views on Pfizer Inc. v. Abdullahi, et al. (09-54), a case that asks the Court to clarify how a 1789 law applies to a U.S. company doing business abroad, when it is sued in U.S. courts for wrongs done in another country.  Pfizer, the largest drug manufacturer, is seeking to head off two lawsuits for damages that claim it harmed scores of children in Nigeria when it gave them an antibiotic drug that had not been approved for children.  Chief Justice John G. Roberts, Jr., took no part in the order, perhaps because he owns Pfizer stock.  Justice Sonia Sotomayor also took no part, apparently because she was on the Second Circuit Court when it denied en banc review of the case. 

There is no timetable for the Solicitor General to respond on any of the four cases, although SG Elena Kagan lately has been filing quite prompt responses to such invitations.

Both cases bearing that title are sequels to the Supreme Court’s June 2008 decision in Boumediene v. Bush, esablishing a constitutional right for Guantanamo prisoners to challenge their continued detention.  In each, the detainees’ counsel are seeking to curb or control what the Pentagon and U.S. diplomats may do about the release of detainees from Guantanamo.   After the Court granted review is what is now known informally as “Kiyemba I,” detainees’ counsel asked for more time to plan their new appeal in “Kiyemba II.”  The Court’s docket sheet entry, here, reflects the Chief Justice’s grant of added time to file, until Nov. 10.  The petition otherwise would have been due next Monday.

“Kiyemba I,”  just granted review, tests whether federal judges may grant release of Guantanamo detainees to live in the U.S.  “Kiyemba II,” the next case, will ask whether judges may bar transfer out of the prison in Cuba to countries where they fear torture or abuse.   The D.C. Circuit Court found no power in the courts to take either action as a remedy in a habeas case.

The lawyers will use the added time to file Kiyemba II to decide whether to ask the Court to delay any action on it until after Kiyemba I is decided, or to take other action on it.

——————

Over one Justice’s dissent, the Supreme Court on Tuesday afternoon blocked officials in Washington State from publicly disclosing the names and addresses of individuals who signed petitions seeking a voter referendum on a new gay rights law.  The disclosure will remain blocked until the Supreme Court can act on a coming appeal by sponsors of the referendum, known as Referendum 71.  The practical effect is that the ballot measure will go before the state’s voters on Nov. 3 without revelations of who signed the petitions to put it on the ballot.  (A post on Monday discussing this dispute can be read here.)

————–

The Supreme Court, probably complicating President Obama’s plans to make new policy on detainees, agreed on Tuesday to rule on the power of federal judges to order prisoners released from Guantanamo Bay, Cuba.  The specific issue in Kiyemba, et al. v. Obama, et al. (08-1234) is whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, but the case has broader implications for all issues surrounding release or transfer of detainees. 

The case — the first on a war-on-terrorism question to be heard by the Court since the new President took office — will require the Justices to explain further (and maybe try to reconcile) two rulings they had issued on the same day in June 2008: Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their continued imprisonment, and Munaf v . Geren, limiting habeas rights for individuals held by the U.S. military but facing criminal charges in another country.  The Obama Administration, like the Bush Administration before it, has relied heavily upon the Munaf decision in arguing that federal judges do not have the authority to control the release or transfer of detainees.  Once such a prisoner has had a chance to pursue a habeas claim, the government has contended, that is all that the Boumediene decision requires.

This was one of two cases the Court added to its docket for decision this Term.

The other new grant involves a pair of cases, joined for argument, testing whether federal law allows cargo carriers and their shipping customers to agree on the terms of transport under a single document (”bill of lading”) applying to all legs of a journey — sea and land, boat and railroad, international and domestic.  The consolidated cases are Kawasaki Kisen Kaisha v. Regal-Beloit (08-1553) and Union Pacific Railroad v. Regal-Beloit (08-1554).

Both of the newly granted cases are likely to be heard in February or March.

Among other actions Tuesday, two Justices filed a strong dissent as the Court refused to hear a new case seeking to test the authority of police to stop a vehicle when they get an anonymous tip that an individual is driving while drunk, but the tip has not been backed up by the officers’ own observations.  Chief Justice John G. Roberts, Jr., joined by Justice Antonin Scalia, said the Court should have granted review of Virginia v. Harris (08-1385).  “The police should have every legitimate tool at their disposal for getting drunk drivers off the road,” Roberts wrote. The Court should have addressed, he said, whether police could stop a possibly drunk driver based on a tip they have not verified.  If that limitation on police is what the Constitution requires, the dissent argued, “the dangerous consequences of this rule are unavoidable…The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police.”  The Court’s order and the dissent can be found here.

The Court issued one summary ruling (found here), requiring the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder.  The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected.  This was an error, the Justices said Tuesday in their unsigned opinion in Corcoran v. Levenhagen (08-10945). There were no noted dissents.

Among the cases denied review Tuesday was Reust v. Alaska (09-195), an attempt to test the constitutionality of a state law that requires that half of the money awarded in a punitive damages verdict in a civil lawsuit must be paid to the state treasury.  The case sought to challenge an Alaska law to that effect; the petition was filed by an Alaska man who had won such a verdict in an employment dispute with an Alaska oil company.

The Justices also refused to hear a plea by the parents of a teenager shot dead by terrorists as the youth stood at a bus stop hear a Jewish settlement outside of Jerusalem in 1996. The parents of David Boim raised the question whether a 1994 law allowing lawsuits for damages for death caused by terrorists abroad applied to those who aided in the terrorist acts, but did not themselves cause the harm.  The Boims’ lawsuit was aimed at a former U.S. leader of the Hamas organization, designated by U.S. officials as a terrorist group.  The case was Boim v. Salah (08-1441).

Docket: 08-1234
Title: Kiyemba v. Obama
Issue: Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, has no power to order the release of prisoners held by the Executive for seven years, when the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Federal Public Defender for District Court of Oregon (in support of petitioners)
• Brief amicus curiae of American Civil Liberties Union (in support of petitioners)
• Brief amici curiae of Association of the Bar of the City of New York et al. (in support of petitioners)
• Petitioners’ counsel’s letter of June 25
• Solicitor General’s letter of June 25
• Petitioners’ counsel’s letter of Sept. 10
• Solicitor General’s letter of Sept. 23

Docket: 08-1553; 08-1554
Title: Kawasaki Kisen Kaisha v. Regal-Beloit Corporation; Union Pacific Railroad Company v. Regal-Beloit Corporation
Issue: Whether the Carmack Amendment to the Interstate Commerce Act of 1887, which governs certain rail and motor transportation by common carriers within the United States, 49 U.S.C. §§ 11706 (rail carriers) & 14706 (motor carriers), applies to the inland rail leg of an intermodal shipment from overseas when the shipment was made under a “through” bill of lading issued by an ocean carrier that extended the Carriage of Goods by Sea Act, 46 U.S.C. § 30701.

• Opinion below (9th Circuit)
• Brief in opposition

For 08-1553:

• Petition for certiorari
• Petitioner’s reply

For 08-1554:

• Petition for certiorari
• Petitioner’s reply

——————

Supporters of a ballot measure asking Washington State voters to veto a new state law on benefits for gay couples who enter “domestic partnerships” have asked the Supreme Court to protect the privacy of individuals who signed petitions to get the issue on next month’s election ballot.  The application, filed with Justice Anthony M. Kennedy, is John Doe, et al. v. Reed, et al. (09A356); it can be found here.  Kennedy has sought a response from state officials by this afternoon.

The dispute raises a series of constitutional questions: is signing a petition to get an issue on the ballot a form of political speech protected by the First Amendment; is the petition-signing process a “public forum,” so that signers have forfeited any privacy right; does a state have a valid reason for publicly disclosing who supports a referendum?  At this stage, the case does not involve the legality or constitutionality of the domestic partnership law that Washington’s governor signed in May.  Sufficient signatures have now been filed to refer that law to the state’s voters at the Nov. 3 election, as Referendum 71.

Washington Gov. Chris Gregoire on May 18 signed into law a bill to make the rights and obligations of couples who register with the state as “domestic partners” equal to those of married spouses.  Even before the law was signed, a group named Protect Marriage Washington began circulating a petition to put the law before the voters. Proposition 71 asks voters to either accept to reject the new law.  Under the Washington state constitution, voters have reserved the power to reject any law through the referendum process.

In September, U.S. District Judge Benjamin H. Settle temporarily barred state officials from releasing the identities of those who signed the referendum petitions.  The disclosure was sought by groups named WhoSigned.org, KnowThyNeighbor.org, and the Washington Coalition for Open Government; their plea was based on the state’s public records act.  Those groups have said the signers should be identified so that the public knows who is behind Referendum 71, and so that those supporters can be challenged personally.

Judge Settle’s temporary injunction was itself blocked last Thursday by the Ninth Circuit Court.   The Circuit Court panel said only that Judge Settle had relied on “an incorrect legal standard.” It said, however, that it would issue “expeditiously” an opinion explaining its action.

In asking Justice Kennedy to put back into effect the bar disclosure of the signers’ identities, Protect Marriage Washington argued that state officials have suddenly changed a long-standing practice of keeping confidential the identities of those who signed referendum petitions.  The group said the signers fear hostile confrontations, and noted that their campaign manager had received death threats.  The application contends that there is no compelling state interest in forcing the disclosure of these identities.

Justice Kennedy has the authority to act on the application himself, or to refer it to his colleagues for joint action.

The other newly granted cases raise these issues:  the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred (U.S. v. Marcus, 08-1341, a case in which Justice Sonia Sotomayor is recused, presumably because she was on the Second Circuit Court panel that decided the case earlier); whether federal law on federal employees’ health benefits preempts a state court lawsuit filed against a government contractor administering such benefits (Health Care Service v. Pollitt, 09-38), and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client (Holland v. Florida, 09-5327).

The Skilling case puts before the Court the third case this Term on the proof that prosecutors must offer in order to win a conviction for failing to provide “honest services” to someone else — the public, a government agency, or one’s employer.  Two of those cases will be heard back-to-back on December 8, and the Skilling case is likely to be scheduled for argument in February or March.

In Skilling, the issue is whether “honest services” fraud requires proof of personal gain from a private individual’s alleged fraud. The case of Black v. U.S. (08-896), granted review last May, tests whether there must be proof of economic harm to the victim as a result of a private individual’s alleged fraud — in that case, one’s own corporation.  And the case of Weyhrauch v. U.S. (08-1196), granted review in June, involves a state official and asks whether there must be proof that the accused violated a duty imposed by state law — in that case, a duty to disclose significant information.

The Court, in agreeing to add the Skilling case to the mix, rejected the advice of the U.S. Solicitor General either to deny review of that case, because of contemplated further proceedings on it in lower courts, or at least to hold it until it had ruled in the Black case. 

Skilling, the former CEO of Enron Corp., was convicted of conspiracy to commit securities and wire fraud and a wide array of other criminal charges.  He was sentenced to 292 months in prison and ordered to pay $45 million in restitution.  The Fifth Circuit Court upheld his conviction, but ordered a new sentencing, concluding that the trial judge had miscalculated under the federal Sentencing Guidelines.

In the newly granted Marcus case, the Justice Department argued that the Second Circuit — in a ruling joined, with some protest, by then-Judge Sotomayor – had wrongly overturned a conviction of engaging in “sex slavery” because the Circuit Court was not convinced that the jury had not based its verdict in part on conduct that pre-dated the federal law defining the crime.  The case involves Glenn Marcus, a New Yorker convicted of sex trafficking using force or coercion and forced labor. He was sentenced to 108 months in prison.  The charges were based on a 2000 law, the Victims of Trafficking and Violence Protection Act, designed to outlaw the use of people — including children — as sex slaves and forcing them to work with threats of violence.  His attorneys claimed that his prosecution was based in part on conduct that allegedly occurred in 1998 and at other points before the new law took effect in October 2000.

The health benefits case the Court will be reviewing involves a lawsuit by a federal employee, complaining of a cutoff of benefits for her minor son.  The employee, however, did not sue the federal agencies involved, but rather went to state court and aimed her lawsuit at the contractor administering the health plan for those agencies — Health Care Service Corp.  That firm sought to transfer the case to federal court, but it was intially dismissed there on the theory that the claim was preempted by federal law.  The Seventh Circuit Court ruled that the case could be tried in federal court, under a different “removal” theory.

The capital case added to the Court’s decision docket involves Albert Holland, convicted in 1996 of murder and sentenced to death.  While his challenges to the conviction were pending in Florida courts, Holland wrote two letters to his court-appointed defense lawyer, expressing concern about filing a federal habeas challenge on time.  His lawyer did not respond.  A state court turned aside his post-conviction plea, but Holland did not learn of that until later.  He filed his own federal habeas petition, but it was filed too late, not within the one-year time limit.  He sought to have the filing period extended, based on the claimed failures of his lawyer to act in time.  That was turned aside by a federal judge and by the Eleventh Circuit Court, finding no extraordinary circumstance justifying “tolling” of the filing period.

In another order, the Court said it would schedule oral argument on the two sides’ responses to a report by a Court-appointed Special Master making recommendations to the Court in 132 Original, Alabama v. North Carolina, an interstate dispute in which four states are suing the state of North Carolina over enforcement of a regional pact on disposal of radioactive wastes.  The Court had agreed in June 2003 to allow the lawsuit to proceed in the Court as an Original matter, and it has been going forward under review by Special Master Bradford R. Clark of Washington.  The Master submitted reports in April, as a prelude to review by the Justices themselves.  Tuesday’s order was a routine one, indicating that “exceptions” to the Special Master’s recommendations will be heard, presumably this Term. 

Among the cases denied review on Tuesday was Loving v. Defense Department (08-1476), a plea by a soldier on a military death row.  The sentence of Private Dwight J. Loving has not been set finally, because it has not yet been reviewed by the President, as federal law requires for death sentences imposed in the military court system.  His case in the Supreme Court involved a plea for access to Pentagon documents sent to the White House, recommending presidential action (for or against) a death sentence.  The Court, as usual, gave no explanation for denying review of the plea.

Meanwhile, the Court’s new Justice Sotomayor signed onto her first opinion, a brief opinion written by Justice Anthony M. Kennedy regarding the Court’s refusal to hear a case on how to assess the cost of proceeding in state court by way of a class action.  Justice Kennedy, in an opinion also joined by Chief Justice John G. Roberts, Jr., said the case raised constitutional concerns over due process.  The opinion, however, was not a dissent; Kennedy and his co-signers said the case was not an appropriate one to hear the issue despite the constitutional question potentially at stake.  The case was DTD Enterprises v. Wells (08-1407).  The order and the separate statement can be found here.