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Petitions to Watch | Conference of 2.26.10

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on Feb 25, 2010 at 11:08 am
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This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference this Friday, February 26.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

The petitions on this list are slightly different, however, because nearly all are reproduced from our last edition of Petitions to Watch, which we released for the February 19 conference.  In an unusual move, the Court last week re-distributed in advance for this week’s conference a large number of petitions that had been distributed for the earlier conference.  The only two new petitions on our list, Nos. 08-1458 and 09-347, are at the top of the list below the jump.

Case in which the United States recently filed an amicus brief in response to the Court’s call for the views of the Solicitor General:

Title: Missouri Gas Energy v. Schmidt
Docket: 08-1458
Issues: (1) Whether the Commerce and Due Process Clauses prohibit a state from imposing upon a shipper an ad valorem property tax on natural gas moving in interstate commerce
while temporarily stored in an interstate pipeline system; and (2) whether a state violates the Commerce and Due Process Clauses when taxing natural gas temporarily stored in an interstate pipeline system by allocating ownership of the gas among various shippers without regard to either (A) the individual taxpayer’s activities in or directed toward the state, or (B) the state in which the taxpayer’s gas physically is, or could be, located.

Cases re-listed for this conference from the February 19, 2010 conference:

Title: Dutka v. AIG Life Insurance Co.
Docket: 09-347
Issue: Whether, absent an express discretion clause in an ERISA-governed insurance plan,
the factual determinations of the administrator are subject to de novo review by the courts.

Title: Ozuna v. United States
Docket: 09-293
Issue: Whether a litigant moving to re-open a suppression hearing to introduce additional evidence must justify his failure to introduce that evidence at the initial hearing.

Title: Liu v. Koninklijke Philips Electronics
Docket: 09-389
Issue: Whether a party contesting the jurisdiction of the district court must first move in the district court to vacate or set aside a default judgment pursuant to either Rule 55(c) or Rule 60(b) of the Federal Rules of Civil Procedure as a prerequisite to appealing the
default judgment.

Title: McCane v. United States
Docket: 09-402
Issue: Whether the good-faith exception to the exclusionary rule applies to a search that is authorized by precedent at the time of the search but which is subsequently ruled unconstitutional.

Title: Saulsberry v. Myers
Docket: 09-451
Issues: (1) Whether probable cause is required to conduct strip searches that further
the overwhelmingly important interests of jail security and safety; and (2) whether the law governing visual, non-body cavity searches of jail detainees was sufficiently settled to be considered “clearly established” at the time of the search in question.

Title: West v. Bell
Docket: 09-461
 Issue: Whether trial counsel’s failure to investigate and present evidence at sentencing of the severe abuse suffered by the defendant as a child can be dismissed on the basis of unsupported conjecture by the court of appeals that the jury might have concluded that “violence begets violence” and might have “despised [the defendant] and sentenced him to death with greater zeal,” leaving the court able only to “speculate” what effect the evidence actually would have had, and thereby foreclosing a conclusion that the defendant was prejudiced by counsel’s failure to present the evidence.

Title: Haskell County Board of Commissioners v. Green
Docket: 09-531
Issues: (1) Whether including a public monument passively acknowledging the historical significance of the Ten Commandments among other privately donated historical monuments violates the Establishment Clause; (2) whether the endorsement test applied in Establishment Clause cases should be an uninformed and mistaken “reasonable observer” or a well-informed “reasonable observer”; and (3) whether the plaintiff, as an un-coerced “offended observer,” has Article III standing.

Title: Volvo Construction Equipment North America, Inc. v. Rose
Docket: 09-601
Issue: Whether healthcare and life insurance benefits granted in a collective bargaining agreement to the respondents should be presumed to survive termination of the agreement and become vested for the respondents’ lifetime.

Title: LFP Publishing Group v. Toffoloni
Docket: 09-625
Issue: Whether First Amendment freedom of the press insulates a publisher from liability for a claim that it violated Georgia’s common-law posthumous right of publicity by publishing non-obscene nude photographs of a decedent in an article in a national magazine, when the decedent was a public figure and her murder was a national news story of great public interest.

Title: Belleque v. Moore
Docket: 09-658
Issues: (1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney’s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, whether it is “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).

Title: Nurre v. Whitehead
Docket: 09-671
Issue: Does the censorship of a student-selected, instrumental-only performance of “Ave Maria” within a limited public forum at a high school graduation ceremony violate the First Amendment’s Free Speech Clause?

Title: Snyder v. Phelps
Docket: 09-751
Issue: (1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter; (2) whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and (3) whether an individual attending a family member’s funeral constitutes a “captive audience” who is entitled to state protection from unwanted communication.

Title: City of San Clemente v. Klein
Docket: 09-777
Issue: Is a city’s interest in preventing litter and blight sufficient to justify a content-neutral “time, place and manner” restriction that prohibits the throwing or depositing litter in or upon vehicles without the consent of an occupant when ample alternative methods of communication admittedly remain open?

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

Title: Javitch, Block & Rathbone, LLP v. Hartman
Docket: 09-606
Issue: (1) Whether various provisions of the Fair Debt Collection Practices Act are unconstitutional as applied to literally true but potentially misleading representations in pleadings under the First Amendment, Fifth Amendment, and the Commerce Clause; and (2) whether evidence that a debt collector acted in good faith and reasonably under the circumstances qualifies for the FDCPA’s “bona fide error” defense.

[Howe & Russell represents the respondents in this case.]

Re-listed case that was originally on the Petitions to Watch list for the conference of October 9, 2009:

Title: Michigan v. Bryant
Docket: 09-150
Issue: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

Posted in Cases in the Pipeline

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