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No new grants; U.S. views sought

The Supreme Court granted no new cases on Monday.  In one of the orders, the Court sought the views of the federal government on three cases — two related cases on the authority of state and local governments to regulate companies that set up cellphone or fiber optic communications services, and a case on whether a criminal prosecution for contempt of court under federal law can ever be pursued by a private person, rather than by the United States.

The U.S. Solicitor General was asked to submit reactions to Level 3 Communications  v. St. Louis (08-626) and Sprint Telephony v. San Diego County (08-759), the cases on preemption of local regulation of wireless and fiber optic services.  In those cases, two federal Circuit Courts rejected the companies’ argument that the local controls were preempted by federal law — the Telecommunications Act of 1996.  The issue in both cases is the scope of a preemption clause in the 1996 Act.

The third case on which the S.G.’s views were invited is Robertson v. U.S. ex rel. Watson (08-6261), asking whether prosecution for criminal contempt of a congressionally created court must be done in the name of the United States. The case involves a District of Columbia man, John Robertson, who was convicted of contempt of a local court created by Congress after a prosecution by his estranged girlfriend, Wykenna Watson, who had obtained a protection order against him.

Robertson’s petition contends that, in exchange for a guilty plea to an assault charge in March 1999, based on an incident in which he had struck his girlfriend, federal prosecutors promised not to prosecute him for a separate assault on her in June of that year. Afterward, however, Ms. Watson, with the aid of the District of Columbia’s top legal officer, pursued and won a conviction on criminal contempt charges for violating the protection order in the June assault.  The local Court of Appeals ultimately ruled that this was a private prosecution, not necessary to have been done in the name of the United States.  The federal government had filed a brief in the case making the same point, and thus arguing that it had not violated its plea agreement with Robertson.

There is no deadline for the S.G. to file views on those cases.

At the opening of the Court’s session Monday, the new Solicitor General, Elena Kagan, was introduced to the Court to begin her service as the government’s top advocate before the Justices. Chief Justice John G. Roberts, Jr., welcomed her in a brief exchange; he also noted “a  job well done” by Deputy Solicitor General Edwin Kneedler, who has served as Acting Solicitor General since Jan. 20.  The exchanges can be read here.

Among the issues that the Court refused to hear were these:

** A plea to consider overruling a 2002 decision, Harris v. U.S., that allows judges to find, by a preponderance standard, the facts that justify a higher minimum sentence for a drug crime. The Justice Department opposed review, noting that the Court has denied review on the same issue, which has divided the lower courts. The case was Clark v. U.S. (08-673).

** A test of the power of states to tax the income of an out-of-state company that only sells its products in that state via the Internet, with no local office or sales staff but with a contractual link with a local company.  Dell Marketing v. New Mexico Tax Department (08-770).  Chief Justice Roberts took no part in the Court’s action.

** A plea to rule that the federal government must pay compensation if it seizes property from an innocent owner for use as evidence in a criminal prosecution of other individuals. The case was Amerisource Corp. v. U.S. (08-497).

Two Justices, Anthony M. Kenney and Stephen G. Breyer, suggested in a bankruptcy case that the Court turned aside that the Court at some point should review a split in the Circuit Courts on the standard to be used in deciding whether a Chapter 11 bankrupt may continue to benefit from leases, performance contracts and licenses to use the property of others.  The issue arose in N.C.P. Marketing Group v. BG Star Productions (08-463). The Court gave no reason in denying review. Kennedy, joined by Breyer, did not dissent, because of perceived procedural problems in this case, but wrote a separate statement on the underlying legal issue.