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Court to rule on state power over bank bias, 5 other cases

The Supreme Court agreed on Friday to decide whether federal banking officials have sole authority to probe whether national banks discriminate against minorities in making home loans, thus excluding any state regulation in that field.  The Court also granted five other cases for review, including two test cases on education issues –  one involving school authority to strip-search students in search of drugs or weapons, the other involving the rights of disabled students and their parents.

The Court expedited the briefing schedule in each, so all would be ready for argument in the April sitting if the Justices choose to hear them then rather than carrying some of them over to the next Term.

The new bank regulation case (Cuomo v. Clearing House Association, 08-453) involves a Second Circuit Court ruling that bars state officials from investigating claims that banks holding national charters are engaging in race or ethnic bias in the home mortgage market.  The case technically turns on a part of the National Bank Act that controls “visitorial powers” toward national banks.  All of the other 49 states joined New York in urging the Court to hear that state’s petition, saying the U.S. Comptroller of the Currency has intruded deeply on state sovereignty by writing a regulation that scuttles traditional police powers of the states.

In reopening the issue of public school students’ rights of privacy, the Court agreed to hear an appeal by an Arizona school district arguing that the Ninth Circuit Court has created a new rule requiring public school officials to have more evidence of illegal possession of drugs or weapons at school than an unproved tip from a student.  The case grows out of the strip-search of a 13-year-old girl at school after one of her classmates said that prescription drugs found on that other student belonged to the girl who was searched.  The case is Safford Unified School District v. Redding (08-479).

The disability rights case puts before the Court an issue it had agreed to decide in 2007, but that case wound up with only a 4-4 split, leaving the issue open. The question is whether parents of a disabled child, who decide on their own to transfer the child to a private school, are entitled to tuition reimbursement from the local public school district if the child had never received any special education assistance previously.  The new case is Forest Grove School District v. T.A. (08-305), involving a disabled student in Forest Grove, Ore.

Here, in summary, are the issues the Court voted to hear in the other cases:

** Whether the federal government is always a party in a lawsuit by a private individual seeking to recover federal funds that have been misspent, so that court rules that are triggered by a federal government role apply to the lawsuit.  The specific issue is whether an individual bringing a so-called “qui tam” lawsuit under the federal False Claims Act must file a notice of appeal, after losing in District Court, within 30 days, or within 60 days.  The 60-day rule usually applies when the federal government is involved.  But the government has the option of staying out of a “qui tam” case, as it did in the case of U.S. ex rel. Eisenstein v. New York City (08-660), a case involving New York City government treatment of its employees who live outside the city.

** Whether a state is constitutionally barred from challenging the claim of mental retardation of an individual it seeks to execute for crime, if a state court had once found the person to be retarded even while upholding a death sentence.  The case of Bobby v. Bies (08-598) involves an Ohio case that basically revolves around a “double jeopardy” issue.  Specifically, it is whether it is unconstitutional double jeopardy if a state begins a new challenge to a convicted killer’s mental retardation, if a state court had previously found the individual to be retarded — thus possibly settling an ultimate issue so that it could not be pursued anew later.

** In a new case on the relationship between criminal convictions and deporting an alien living in the U.S., whether the individual can be ordered out of the country based on a conviction for a fraud conspiracy involving loss to the victim of more than $10,000, if the jury in the case did not specifically find that the loss reached that level — even though, in this case, the convicted individual had conceded in court papers that the loss actually reached more than $100 million. The case is Nijhawan v. Mukasey (Attorney General), 08-495, involving an immigrant from India.