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Government rebuffed on Capitol Hill searches


This update includes, in the concluding paragraphs of the post, a report on an order issued on Sunday by Justice Anthony M. Kennedy in a California parole case.

The Supreme Court refused on Monday to hear the Justice Department appeal seeking to restore the FBI’s full authority to search the offices of members of Congress under investigation for crime. The denial of review came as the Court agreed to hear two new cases — one on city government power to limit the kinds of monuments placed in city parks. The other case tests state power to block local governments from deducting fees from their workers’ paychecks to finance political activities.

In the only decision on the merits Monday, the Court ruled that Delaware and New Jersey share the legal authority to control construction of riverside projects along the Delaware River. It thus rejected New Jersey’s claim to exclusive jurisdiction over projects that jut out from New Jersey’s shore into the river. The decision in New Jersey v. Delaware (134 Original) upheld most of a recommendation by a Special Master that the Court rule that the two states shared regulatory authority over such projects. The dispute arose over plans to build a large natural gas loading facility for supertankers along the Delaware River. The vote was 6-2, with Justice John Paul Stevens in the majority on part of the case and in dissent on another part. Justice Stephen G. Breyer did not take part. The main opinion was written by Justice Ruth Bader Ginsburg.

The Court’s denial of review in U.S. v. Rayburn House Office Building Room 2113 (07-8160) left intact a ruling by the D.C. Circuit Court that gives members of the House and Senate some protection under the Constitution’s Speech or Debate Clause against criminal searches — even with a warrant — of their legislative offices. The specific search at issue involved the office of Rep. William Jefferson, Louisiana Democrat, who has since been charged with bribery and other federal crimes. The Justice Department appeal argued that the Circuit Court’s decision would seriously hamper probes of corruption and criminal conduct by lawmakers. The congressman’s trial in federal court in Alexandria, VA, has been delayed while he pursues an appeal in the Fourth Circuit Court on a pre-trial issue.

The newly granted case on monuments on public property — Pleasant Grove City v. Summum (06-665) — will return the Court to the thorny issue of government control of expressive displays in city parks and other public places. The case grows out of a dispute between a city in Utah and a religious sect, Summum, that sought to place in a city park — along with other monuments, including one dedicated to the Ten Commandments — a monument to the tenets of Summum’s faith, the “Seven Aphorisms.”

The other granted case, Ysura v. Pocatello Education Association (07-869), tests a Ninth Circuit Court ruling that the First Amendment bars the Idaho legislature from denying payroll deductions by local governments for political activities. The Idaho law at issue barred payroll deductions to pay for political activities by labor unions. The law was challenged by labor unions representing workers for school districts, cities and counties in Idaho.

The two new cases will be argued in the Term starting Oct. 6.

Among its other orders, the Court asked the U.S. Solicitor General for the federal government’s views on a case involving two FBI agents who were denied legal immunity by the Sixth Circuit Court for their actions in detaining anti-abortion protesters in Dayton, Ohio. The appeal by the two agents seeks to test the role that a law enforcement officer’s motive may play in deciding whether the officer has immunity to a legal claim. The case is Morris, et al., v. Center for Bio-Ethical Reform (07-811). There is no deadline for the Solicitor General to respond. After the Sixth Circuit ruled against the immunity claim, the Solicitor General did not authorize an appeal to the Supreme Court, but the two agents filed their own appeal with private counsel. In asking for the government’s views, the Court may have been interested in whether the SG had bypassed a government appeal because of doubts about such a challenge.

The list of denied cases included the following:

** Whether it is unconstitutional for a judge to impose a stiffer criminal sentence based on conduct on which a jury had refused to convict — so-called “acquitted conduct.” The Court has refused repeatedly in recent months to hear that issue. It was raised anew in Hurn v. U.S. (07-605).

** Whether a court or an arbitrator is to rule on the effect a prior court ruling has on arbitration of a dispute growing out of the same incidents. Collins v. D.R. Horton Inc. (07-849).

** Whether the Federal Arbitration Act bars a state court from refusing to enforce an arbitration agreement based on state labor law policies. Circuit City Stores v. Gentry (07-998).

The Court took no action Monday on a major new test case on criminal sentencing — the case of Pittman v. South Carolina (07-8436), on the constitutionality of lengthy prison sentences for youths who are in the early teen years. The case specifically tests a 30-year sentence without possibility of parole for a 12-year-old boy who killed his grandparents.

Meanwhile, on Sunday, Justice Anthony M. Kennedy issued an order temporarily blocking the release from California prison of Fred McCullough, convicted of the 1982 bludgeoning murder of a sleeping man during a Los Angeles robbery that netted $50 from the man’s wallet. Gov. Arnold Schwarzenegger denied McCullough parole in 2004, even though the state’s Parole Board had ruled that McCullough was suitable for parole. McCullough then challenged his continued confinement in federal court, winning an order that his significant rehabilitation in prison outweighed the governor’s reliance on the nature of the crime years before.

Kennedy has asked for a response from McCullough’s counsel by 3 p.m. on Wednesday. Kennedy’s order can be found here. The state of California’s stay application is in Kane v. McCullough, 07A804.