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A new vote for property rights?

The Supreme Court refused on Monday, amid a flurry of orders, to reopen the heated controversy over the power of government to seize private property for a new economic development project, but owners of property appeared to have picked up a potential new ally on the Court. Justice Samual A. Alito, Jr., was the only member of the Court to note that he would have granted review of a significant Second Circuit Court ruling on property rights in the face of a massive new project in the Prospect Heights section of Brooklyn, N.Y.

The Court as a whole turned down an appeal by a group of homeowners and business operators who are likely to lose their property to the 22-acre development near the rail yards for the Long Island Railroad. That development, planned by a group headed by developer Bruce Ratner, is the Atlantic Yards Arena and Development Project; it will provide a new home for the New Jersey Nets professional basketball team (which Ratner owns), plus 16 high-rise office and aprtment towers, and a 180-room hotel. The failed appeal by property owners involves about 20 percent of the development site. (Their appeal to the Supreme Court came in Goldstein, et al., v. Pataki, et al., 07-1247).

Because the Court simply denied review of the Second Circuit decision, it set no new precedent. But the case had been closely watched for the Court’s reaction to the one of the first significant sequels to arise in the controversy that spread rapidly across the country following its much-disputed 2005 ruling in Kelo v. New London, allowing private property to be taken for economic redevelopment by private organizations. Justice Alito was not on the Court for Kelo; his predecessor, now-retired Justice Sandra Day O’Connor, wrote the main dissent. Justices Antonin Scalia and Clarence Thomas also dissented; they did not reveal their votes Monday in the Goldstein case. Chief Justice John G. Roberts, Jr., also not on the Court for Kelo, did not reveal his vote Monday (his predecesssor, the late Chief Justice William H. Rehnquist, dissented in rhe 2005 decision).

Meanwhile, the Court on Monday added seven new cases to its decision docket for the new Term that opens on Monday, Oct. 6.

One of the most highly visible cases was an appeal by U.S. Navy leaders, asking the Justices to strike down a federal judge’s order that would require the Navy to take steps to protect whales off the coast of California by strictly limiting its use of submarine-detecting sonar transmissions during training exercises. The judge’s order has been put on hold pending the Navy’s appeal in Winter (Navy Secretary), et al., v. Natural Resources Defense Council, et al. (07-1239).

The Court accepted the advice of the U.S. Solicitor General and granted review in three new cases, but did not follow the Solicitor’s proposal to send one case back to a lower court for a new review. The Court agreed to hear AT&T Corp. v. Hulteen (07-543), on whether federal law requires an employer to adjust pension benefits upward to make up for denial of work credit for pregnancy leave in the past; Harbison v. Bell (07-8521), on whether a poor individual on death row who has a federally funded defense lawyer may use that lawyer’s aid in seeking clemency from a state’s governor, and Pacific Bell v. linkLine Communications (07-512), on the validity of the antitrust theory of a “price squeeze” — that is, a company policy of setting high prices at wholeale but then low prices on its own retail sales to undercut retail competitors who buy from it at wholesale. While the Solicitor favored review of Pacific Bell, the Federal Trade Commission had said it was opposed to that idea.

The Court granted the appeal of Iran’s Defense Ministry, testing the power of U.S. courts to order a seizure of the assets in the U.S. of a foreign government that has been accused of aiding terrorism, with the assets to be used to pay a debt owed in the U.S. The Solicitor General, asked by the Court for the government’s views, suggested that the Ninth Circuit Court be told to reconsider its ruling on the foreign agency’s challenge to seizure of the proceeds of an arbitration award it had won. The case will be heard later this year; it is Iran Ministry of Defense v. Elahi (07-615).

One of the other two new cases the Court granted on Monday is Cone v. Bell (07-1114), seeking a ruling that a state prison inmate who has raised constitutional challenges twice before in state courts may not press them anew in a federal habeas case. This is the sixth time that case has been appealed to the Justices, by one side or the other.

The final case put on the decision docket Monday was Arizona v. Johnson (07-1122), on the authority of police to conduct a pat-down search of a vehicle passenger after a car or truck has been stopped for a minor traffic violation.

Besides the Court’s refusal to hear the new property rights case from Brooklyn, perhaps the most significant denial came in a refusal to hear a constitutional challenge to the federal government’s power to set aside a multitude of federal, state and local laws in order to clear the way to build a high fence along the U.S.-Mexico border, to keep out illegal aliens and potential terrorists. The appeal in Defenders of Wildlife, et al., v. Chertoff (07-1180) attempted to raise significant questions about delegation of legislative power to a federal Cabinet officer. A federal judge turned aside the challenge, and the only appeal was directly to the Supreme Court, with discretion simply to deny it. That is what occurred.

Among other cases denied review on Monday, these were the issues:

** Whether it is illegal for public school officials to decide, before talking with parents of a disabled child, that the child is to be placed in a mainstream public school setting (Hjortness v. Neenah School District, 07-1178).

** Whether U.S. courts have discretion, or must enforce the clauses in international business contracts that specify where lawsuits over the contracts are to be pursued (Canon Latin America v. Lantech, 07-1421).

** Whether a U.S. court has authority to bar a company from suing overseas to try to undo a money judgment previously won in a U.S. court. The U.S. Solicitor General, asked for the government’s views, recommended denials in both Goss International v. TKS (07-618), and PT Pertamina v. Karaha Bodas (07-619). The Court did so.

As the Court continued to release final opinions on the merits, it announced these results:

** By an 8-1 vote, but with two concurring opinions, the Court ruled that the Sixth Amendment right to a lawyer takes effect when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed; the right need not await a prosecutor’s involvement to prepare or make a formal criminal charge. (Rothgery v. Gillespie County, 07-440).

** Over two full and one partial dissents, the Court ruled that a federal appeals court does not have the power to act on its own to increase a federal criminal sentence, if the government has not filed its own appeal challenging the sentence. (Greenlaw v. U.S., 07-330).

** Dividing 5-4, the Court ruled that if a company claiming to be wronged turns over the right to sue another company, the other firm does have a right to proceed with the case even if it stands to gain nothing itself if it succeeds. (Sprint Communications v. APCC, 07-552).

The Court will next issue opinions on the merits on Wednesday.

Monday’s orders included two that returned criminal cases to the Seventh Circuit Court to consider the Solicitor General’s suggestion that the Circuit Court used flawed reasoning in refusing to hear ineffective lawyer claims. Justice Scalia dissented from both dispositions, joined by the Chief Justice and Justice Thomas, in Nunez v. U.S. (07-818) and Stephenson v. U.S. (07-9267). For a copy of the orders and dissents, click here.