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Court grants no new cases, turns down CIA case

The Supreme Court granted no new cases Tuesday and, in a major action, refused to reopen the question of the government’s power to limit or scuttle lawsuits by claiming that “state secrets” have to be protected. The Court denied review of an attempt to challenge the Central Intelligence Agency’s program of capturing individuals abroad and sending them to other countries for aggressive interrogation — the so-called “extraordinary renditions” program. There were no noted dissents from the denial order in El-Masri v. U.S. (06-1613).

The Court has not focused directly on the scope of the “state secrets” privilege since the 1953 decision in U.S. v. Reynolds. The Justices next opportunity to grant review of a case testing that privilege is American Civil Liberties Union v. National Security Agency, a challenge to the government’s secret terrorism eavesdropping program. (That case has just been docketed as 07-468.)

The Court, in other action on Tuesday, refused to give states new guidance on how a death-row inmate is to be judged mentally retarded and thus not subject to the death penalty. (Chester v. Texas, 06-1616). And, just as it did a week ago in another case, the Court declined a plea to reconsider a 1985 ruling that property owners must first seek compensation in state court under state law before they may go to federal court to challenge the seizure of their property. (Rockstead v. Crystal Lake, 06-1716.) The same issue was bypassed in McNamara v. Rittman, Ohio (06-1481) on Oct. 1.

Over the dissents of three Justices, the Court sent back to lower courts for reconsideration a new case testing what instructions must be given to a jury in a death penalty case to assure that they need not be unanimous in finding offsetting (mitigating) factors even though they must all agree on their ultimate punishment verdict. The case, Hudson v.
(06-1535), also tested the standard for evaluating the effectiveness of a defense lawyer when trial strategy seems to work against the defendant’s interests. The case was returned to the Sixth Circuit Court for a new look under two prior precedents, Carey v. Musladin and Schriro v. Landrigan. Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens noted that they would have denied the petition.

The Court took no action on Tuesday on a plea to expand its review of the lethal injection procedure in capital punishment cases. The new case is Taylor v. Crawford (07-303). The Court was asked to expedite that petition and hear it along with Baze v. Reese (07-5439), granted on Sept. 25.

In addition, the Court did not act on a significant new test case seeking clarification of when business firms that are partners in a commercial transaction may be sued for triple damages under federal anti-racketeering law, on the theory that their joint action amounts to an “enterprise.” The case is Microsoft Corp. v. Odom (07-138).

Among other cases denied review, the Court refused to hear a new test of when organizers of a show or festival using public space may constitutionally keep out protesters or others who want to express views different from those of the event’s sponsors. The case was Memorial Day Weekend Salute v. Wickersham, 07-142.

These were some of the other denied cases:
** Department of Army v. Kirkendall (07-19), a government appeal seeking clarification on the time that a veteran has to appeal within the government when a claim for veterans’ preference in federal employment has been denied.

** Middleton v. Trustees, South California Baker Drivers Fund (07-94), on whether providers of benefits for employee benefit plans under ERISa must return any surplus in payments beyond actually payments for benefits.

** Compaq Computer (now Hewlett-Packard) v. Grider (07-95), on the duty of one state to respect the case law of another state interpreting that other state’s law bearing upon creation of a nationwide class for civil litigation.

** Cincinnati v. Cleveland Construction, Inc. (07-113), on the constitutionality of government programs that reward contractors for “outreach” programs to subcontracting firms that are owned by minorities or by women.