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Court opens new Original case in water dispute

Opening a new Term, the Supreme Court on Monday allowed the state of South Carolina to begin a lawsuit directly in the Court against its neighbor, North Carolina, in a dispute over alleged diversion of water from the Catawba River (138 Original). While granting the motion to file, the Court turned down a request from South Carolina seeking to bar North Carolina temporarily from authorizing any excess diversions of water from the river (Application 06A1150).

Among 85 pages of orders on pending cases, the Court asked the U.S. Solicitor General for the federal government’s views on four cases:

* 06-1398, AT&T Pension Benefit Plan v. Call, an ERISA benefits case involving a split in the Circuit Courts over the question of deference to a benefit plan administrator’s interpretation of the plan.

* 06-1458, Geddes v. United Staffing Alliance, another ERISA case involving a conflict among federal Circuit Courts over the standard for judging denials of medical benefits by plan administrators.

* 06-1505, Meacham v. Knolls Atomic Power Laboratory, an Age Discrimination in Employment Act case testing who has the burden of showing that a challenged employment action was or was not done for reasons other than age.

* 06-1595, Crawford v. Metro Nashville-Davidson County, testing whether the anti-retaliation protection under Title VII of civil rights law protects a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harrasment.

The Court assured that full review would go forward in a granted case involving federal preemption of claims under state law from harms due to medical devices. It granted substitution for a deceased petitioner in Riegel v. Medtronic (06-179). Over the dissents of Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, the Court allowed Donna Riegel to be substituted for her late husband, Charles R. Riegel. (Mrs. Riegel is also a petitioner on her own behalf, but sought to have her role in managing the estate take the place of her husband’s claim.) Roberts and Scalia said the motion should be denied because it was filed more than six months after the death occurred, but the Court’s order said that “the exercise of this Court’s power to grant an untimely motion to substitute a party is not unprecedented.” Citing a standard manual on Supreme Court practice, the Court added that its procedural rules “adopted for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion.”

In an unusual statement issued as the Court denied review of a Virginia death penalty case, two Justices — John Paul Stevens, joined by Ruth Bader Ginsburg — urged the Court to adopt “a routine practice of staying all executions scheduled in advance of the completion of our review of the denial of a capital defendant’s first application for a federal writ of habeas corpus. Such a practice would be faithful to the distinction between first and successive habeas petitions recognized by Congress in the Antiterrorism and Effective Death Penalty Act and would accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants. It is a practice that Justice Ginsburg and I have followed in the past and one that I hope a majority of the Court will eventually endorse.”

Their statement in response to the denial of review in Emmett v. Kelly (06-11622) noted that they did not dissent from the Court’s action. Christopher Scott Emmett had raised a challenge to the adequacy of his defense lawyer at the sentencing phase of his case. Stevens noted that the petition had been filed June 1, indicating that it would be considered at the Sept. 24 Conference. But, Stevens said, Virginia set an execution date of June 13, “making it impossible for us to consider the merits of the petition in the normal course, and making it necessary for the Court to rule on petitioner’s last-minute application for a stay of execution” (which was denied). Virginia’s governor gave the C0urt a chance to consider the petition by granting Emmett a reprieve, Stevens said.

Most of the Court’s orders on Monday involved denials of the vast majority of the 1,995 petitions scheduled for consideration at the Sept. 24 Conference. Perhaps the most notable denial of review came in the case of R.J. Reynolds Tobacco v. Engle (06-1545), asking the Court to clarify its 1992 ruling that federal law bars claims of a failure to warn smokers about health hazards in the industry’s post-1969 advertising or promotion campaigns. The Engle case at one time involved a punitive damages award of $145 billion against the cigarette makers, but that was thrown out by the Florida Supreme Court. At this stage, the appeal by the companies sought to have the Supreme Court shape the scope of review in individual punitive damages cases that will unfold in the future.

Among the other significant cases denied review on Monday were these (shown here in order of docket numbers):

06-999, Faulks v. U.S. — the authority of judges to find facts that justify an order to return a convicted individual to prison for violation of a condition of release from custody.

06-1251, Golphin v. Florida — constitutionality of police retention of a person’s ID after a traffic stop, to check for outstanding warrants.

06-1345, MiPro Homes v. Mount Laurel Township — scope of “public use” doctrine under the Fifth Amendment Takings Clause, when a local government acts on an ad hoc basis rather than through a full planning process.

06-1380, Parker estate v. Sedona Golf Resort — right of a party to take a different position in a lawsuit after an ealirer postion has been approved in court, but is later rejected on appeal.

06-1438, Hudson v. AEP Texas North — power of state utility regulators to decide whether federally approved wholesale energy rates have been violated.

06-1471, Gay v. Morgan — proof of the minimum amount in dispute before a class action civil lawsuit may be transferred from state to federal court for trial.

06-1481, McNamara v. Rittman, Ohio — plea to reconsider Williamson County v. Hamilton Bank (1985), requiring property owners to seek compensation in state court under state law before going to federal court.

06-1501, Williams v. King — new attempt to persuade the Court to review state power to bar the distribution of sexual devices; case was previously denied in February 2005.

06-1540, Mallinckrodt v. Maine People’s Alliance — scope of citizens’ rights to force a cleanup of hazardous wastes.

06-1543, Saouvong v. Washington — constitutionality of imposing a higher sentence on an adult criminal based upon earlier juvenile delinquency findings that were not before a jury.

06-1550, Catholic Charities of Albany v. Dinallo — state legislatures’ power to require that groups affiliated with churches provide birth control under prescription drug plans for employees, when the organizations oppose that based on religious beliefs.

06-1578, Andalusia Distributing v. R.J. Reynolds, et al. — immunity of wholesale discount prices to challenge under Robinson-Patman Act solely because they are available to all buyers.

06-1614, Pooh Bar Enterprises v. Chicago — constitutionality of a city ordinance that bans the sale of liquor in the same establishment that allows dancers in thinly clad outfits, though not totally nude.

06-1617, Gilles v. Blanchard — power of public college officials to restrict speech on open areas of the campus.

06-1633, Faith Center Church v. Glover — constitutional authority of government agencies to bar religious services from public libraries.

06-1694, Brewer v. University of Illinois Trustees — liability of employer for discrimination in the workplace if the bias is due to actions of a worker’s supervisor who is not the ultimate decision-maker (the so-called “cat’s paw” liability issue under Title VII).