UPDATE Wednesday p.m.  The state of Virginia urged the Court Wednesday to permit the Nov. 10 execution to go forward, and argued that Muhammad’s lawyers had made no argument for review of his challenges.  The brief in opposition is here. His claim about mental incompetency was not raised in lower courts, the state contended, and his challenge to Virginia’s rapid efforts to move capital cases along does not raise a significant issue. (NOTE: The stay application is docketed as 09A428, not 09A423 as indicated in the earlier post, below.)

——————–

Seeking to slow down the famed “rocket docket” in federal the srial courts in Virginia, at least when a death-row inmate is testing his state conviction and sentence, attorneys for John Allen Muhammad asked the Supreme Court on Tuesday to delay his execution and then hear and decide his challenges.  Muhammad faces execution in one week, on Nov. 10,  for a Manassas, Va., murder that was one of ten he and a youthful compansion allegedly carried out in a wave of 16 sniper shootings in the Washington area seven years ago.

Besides testing a practice in the Virginia federal district courts of shortening the time to file an initial federal habeas plea, Muhammad’s counsel are challenging lower courts’ rulings that he was not harmed legally by representing himself for part of his trial, even though lawyers advising him knew of evidence that would indicate he was not mentally competent to understand what was happening at the trial.

His stay application (09A423) is here.  Along with it, he filed a petition for review (Muhammad v. Kelly, 09-7328).  The papers were filed initially with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for emergency orders in the federal Fourth Circuit, which includes Virginia.  He has the authority to act alone or share action with his colleages on the stay application.  The full Court will consider the certiorari petition. Read the rest of this entry »

Tomorrow at 10 a.m., the Court will hear oral argument in Pottawattamie County v. McGhee (08-1065).  Briefs and other filings in the case are available at the case page on SCOTUSwiki.  [Disclosure:  Amy Howe of Howe & Russell and Tom Goldstein of Akin Gump filed amicus briefs in support of petitioners at both the cert. and merits stages.  However, the author of this post was not employed at Howe & Russell when those briefs were filed, nor was she involved in the briefs in any other way.]

Prosecutors are normally immune from suit for their official actions during a trial.  Tomorrow, in Pottawattamie County v. McGhee, the Court will consider whether that immunity extends to actions taken in preparation for trial.  The stakes in this technical question are high because the prosecutors’ actions at issue in the case resulted in two men – the respondents here – being incarcerated for twenty-five years based on falsified evidence. 

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison.  Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense.  The Iowa Supreme Court vacated Harrington’s sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served.  Both prisoners were freed.

Read the rest of this entry »

The transcripts of oral argument in NRG Power Marketing v. Maine Public Utilities is here.

The transcript of oral argument in Schwab v. Reilly is here.

The transcript of oral argument in Hemi Group, LLC v. City of New York is here.

Below, Stanford Law School’s Connor Williams recaps yesterday’s oral argument in Jones v. Harris Associates. Connor’s preview of the case is available here, and Howe & Russell’s Kevin Russell analyzes the argument here. See the Jones v. Harris Associates (08-586) SCOTUSwiki page for additional updates.

As noted in Kevin Russell’s earlier post, all three of the attorneys (representing the petitioner, the federal government, and the respondent) who took to the podium during the oral argument yesterday in Jones v. Harris Associates urged the Court to adopt the Gartenberg standard for determining whether an investment advisor had breached the fiduciary duty established by Section 36 of the Investment Company Act. They disagreed, however, on the narrower issue of how exactly the standard should be articulated to determine when fees charged to mutual fund shareholders by their advisers violate the law. Although the three advocates shared the load of hauling Gartenberg toward the finish line, members of the Court appeared to struggle to find a workable rule that would not anoint the judicial branch as the designated fee regulator.

Read the rest of this entry »

Jones v. Harris Associates continues to headline coverage of the Supreme Court this morning.  The WSJ Law Blog, Chicago Tribune, and Bloomberg all feature recaps of yesterday’s oral arguments.  In the blogosphere, Kim Krawiec at the Conglomerate agrees with Judge Easterbrook’s  “basic argument.”  She acknowledges that high levels of “interconnectedness” on corporate boards may lead to “favoritism…to the detriment of investors” but contends that there are enough competitive mutual funds that unhappy customers can transfer their assets to mutual funds with more reasonable fees.  And even though there are acknowledged problems with the market model of setting these fees, she argues, it is not clear that “courts can systematically do better” than the market.

Read the rest of this entry »

The Court will hear oral arguments in three cases:

10 a.m. – The standard of review for wholesale electric rates is at issue in NRG Power Marketing v. Maine Public Utilities (08-674).  Yesterday Akin Gump’s Scott Johnson discussed the case and the Mobile-Sierra doctrine involved.

11 a.m. – In Schwab v. Reilly (08-538), the Court will consider what valuation of property a bankrupt debtor may retain.  The argument is previewed here by Stanford law school student Anthony Dick.

1 p.m. – In Hemi Group, LLC v. City of New York (08-969), the issue is whether a city government can use a civil RICO lawsuit to collect cigarette taxes.  Brian Goldman, a law student at Stanford, previews the argument here.

No non-capital orders are expected from the Court today.

Below, Howe & Russell’s Kevin Russell recaps today’s argument in Jones v. Harris Associates (08-586). Check the case page at SCOTUSwiki for additional updates.

When the Court granted certiorari in Jones v. Harris Associates, No. 08-586, it likely thought that it was taking the case to decide whether the size of the fees charged by investment advisors to their mutual fund clients, standing alone, could render the fee unlawful under the Investment Company Act, or whether a violation could be shown only in cases in which the mutual fund’s board was misled into approving an unusually large fee (as the Seventh Circuit had held). But by the time the case was argued this morning, it was difficult to tell whether there was any real dispute about the legal standard at all, much less how the Court is likely to resolve the case.

Read the rest of this entry »

Analysis

Sometimes, the Supreme Court seems not so concerned about the case actually before it, as it is about the next case: where might a decision in the first case lead in the future?  In lawyers’ shorthand, is the Court about to put a legal issue on a logical “slippery slope”? Will dire consequences occur if a ruling’s reasoning runs too far?  The Justices found themselves looking down slippery slopes on Monday, as they heard argument in an important case pitting state sovereignty against federal court authority, the Shady Grove Orthopedic case (08-1008).

One version of unwanted consequences, emerging from comments both from the bench and from a lawyer for Shady Grove Orthopedic Associates, was that the Court risked encouraging states to cut off entirely the right of consumers to join together to pursue their legal claims in class-action lawsuits in federal court.  A different version, also emanating from both the bench and a lawyer for Allstate Insurance Co., was that the Court risked overturning, by implication, an array of existing state laws defining what remedies consumers may seek for wrongs that are defined by state law.

Read the rest of this entry »

Below, Akin Gump’s Scott Johnson previews NRG Power Marketing, LLC v. Maine Public Utilities Commission, one of the three cases to be heard by the Supreme Court on Tuesday, November 3. Check the NRG Power Marketing, LLC v. Maine Public Utilities Commission (08-674) SCOTUSwiki page for additional updates.

Background

The Federal Power Act (“FPA”) requires rates for the wholesale sale of electricity to be “just and reasonable.” In United Gas Pipe Line Co. v. Mobile Gas Service Corp. (1956) and FPC v. Sierra Pacific Power Co. (1956), as interpreted in Morgan Stanley Capital Group v. Public Utility District No. 1 of Snohomish County (2008), the Supreme Court held that the Federal Energy Regulatory Commission (“FERC”) must presume that rates established by contract (as opposed to those established by a unilateral rate filing) are just and reasonable. There are two limited exceptions to this general presumption: if FERC concludes that the contract “seriously harms the public interest” or if the parties to the contract agree that the Mobile-Sierra public interest standard will not apply, then FERC may abrogate or modify contract rates. Tomorrow in No. 08-674, NRG Power Marketing, LLC v. Maine Public Utilities Commission, the Court will address whether the Mobile-Sierra public interest standard applies when a contract rate is challenged by an entity that was not a party to the contract.

Read the rest of this entry »

Discussion is already turning to this morning’s orders, which we covered and analyzed earlier.  At the Wall Street Journal, Dow Jones Newswire’s Kristina Peterson addresses the Court’s denial of cert. in a drug-patent dispute between generic drug manufacturer Apotex Corp. and patent-holders Sanofi-Aventis and Bristol-Myers Squibb, while the Associated Press has coverage of the Court’s decision not to hear an appeal to stop the release of documents relating to sexual abuse lawsuits against Roman Catholic priests in Connecticut.  The AP also reports that the Court will address the legality of decisions made by only two members of the National Labor Relations Board, and the Wall Street Journal has an article on the Court’s decision to let stand a government fee imposed against Daewoo Engineering and Construction Co.; the company was found to have failed to submit a fully accurate claim for government funding.  (Disclosure: Akin Gump represented the petitioner in the case.)  The Court also let stand a ruling permitting prosecutors to charge a Ku Klux Klan member with kidnapping more than 40 years after the alleged crime took place, according to the AP.

Read the rest of this entry »

The transcripts of oral argument are here for Jones v. Harris Associates; here for Shady Grove Orthopedic Associates v. Allstate Insurance Co.; and here for Beard v. Kindler.

The D.C. Circuit Court’s deeply controversial ruling in September, removing federal restrictions on high-volume spending in federal elections by non-profit advocacy groups, is not going to be challenged further in the Circuit Court.  Monday was the deadline for parties to seek en banc review by the full Court of the panel ruling in the EMILY’s List case, but U.S. Solicitor General Elena Kagan will not seek it, concluding that she has no authority to do so.  She still has the option, in coming weeks, of asking the Supreme Court to hear it, however.  (An earlier post discussing the case can be read here.) Read the rest of this entry »

The Supreme Court on Monday released the list of cases to be argued in the sitting beginning Mon., Jan. 11.  It can be found here.  There will be no afternoon arguments.  The first case of each day begins at 10 a.m.  The day-to-day list of cases on the calendar, with a summary of the issues involved, appears after the jump.

Read the rest of this entry »

The Court has granted certiorari in Hamilton, Chapter 13 Trustee v. Lanning (08-998), New Process Steel v. National Labor Relations Board (08-1457), and Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc. (09-223). As of this grant, Akin Gump represents the respondent in Hamilton v. Lanning.

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

The full order list is here.

Read the rest of this entry »

The Supreme Court agreed on Monday to clarify when federal courts are barred from ruling on challenges to state tax laws. This was one of three business-related cases the Justices added to their docket for rulings this Term.  In another order, the Court refused to allow a Guantanamo detainee to bring his plea for release to the Court without waiting for a ruling on it in a lower court; that action appears to leave the prisoner in a new legal limbo, since the lower court has put his case on hold for the next several months.

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. Read the rest of this entry »