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Petitions to Watch | Conference of 5.14.09

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on May 14. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

Docket: 08-861
Title: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al.
Issue: Whether the Sarbanes-Oxley Act is consistent with separation-of-powers principles – as the Public Company Accounting Oversight Board  is overseen by the Securities and Exchange Commission, which is in turn overseen by the President – or contrary to the Appointments Clause of the Constitution,  as the PCAOB members are appointed by the SEC.

Docket: 08-866
Title: Nevada  v. Shawn Russell Harte
Issue: Whether an underlying felony can be used both as a theory for a felony-murder conviction and also as an aggravating circumstance allowing the jury to consider capital punishment, and if Nevada’s statutory scheme adequately narrows the class of individuals eligible for the death penalty.

Docket: 08-871
Title: Canadian Pacific Railway Company, et al. v. Tom Lundeen, et al.
Issue: Whether Congress can overturn a final federal court of appeals judgment because other claims not addressed by that judgment remain pending on remand from the initial decision and if Congress can employ a “clarification amendment” to direct a federal court to set aside prior statutory interpretation in a pending case.

Docket: 08-876
Title: Black, et al.  v. United States
Issue: Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find – nor did the district court instruct them that they had to find – that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.

Docket:  08-887, 08-897
Title: San Diego County, et al.  v. San Diego NORML, et al.; San Bernardino County, et al., v. California, et al.
Issue:  Do California’s Compassionate Use Act and Medical Marijuana Program conflict with the Controlled Substances Act, and are they therefore barred under the doctrine of federal preemption?

Docket: 08-974
Title: Lewis, et al. v. City of Chicago
Issue: Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?

Docket: 08-992
Title: Beard v. Kindler
Issue:  Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine – and therefore unenforceable on federal habeas corpus review – because the state rule is discretionary rather than mandatory?

Docket: 08-996
Title: Buckley v. Rackard
Issue: Whether a police officer violated the Fourth Amendment by administering Taser shocks to an already handcuffed, nonviolent misdemeanor traffic arrestee and if that officer had fair notice sufficient to deprive him of qualified immunity that this act was excessive force that violated the Fourth Amendment.

Docket:  08-1032
Title: Allen v. Williams
Issue: In assessing whether a defendant was prejudiced by his counsel’s failure to present additional mitigating evidence during a capital sentencing proceeding, does a state appellate court unreasonably apply clearly established Federal law, when it emphasizes the absence of a “causal relationship” between the mitigating evidence and the underlying murder when determining the weight of the mitigating evidence?

Docket: 08-1039
Title: Steinbeck, et al. v. Penguin Group (USA) Inc., et al.
Issue: Whether the right of termination granted by Congress in the Copyright Act to authors and their families-in this case, the descendants of author John Steinbeck-and made available for exercise “notwithstanding any agreement to the contrary” can be extinguished by a copyright holder’s agreement to regrant previously transferred rights.

Docket: 08-1059
Title: Jefferson v. United States
Issue: Whether the facially valid indictment of William Jefferson, a Member of Congress from Louisiana, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.

Docket: 08-1139
Title: Action Apartment Association v. City of Santa Monica et al.
Issue: Does a Fifth Amendment takings claim based upon the “essential nexus” and “rough proportionality” tests lie against legislatively imposed exactions?

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 08-1185
Title: Dunphy v. United States
Issue: Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.

[Akin Gump and Howe & Russell represent the petitioner]