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No new grants, five CVSGs (FINAL UPDATE)

FINAL UPDATE 1:16 p.m.


The Supreme Court opened its new Term Monday, releasing a massive list of orders on cases considered at its September 26 Conference.  It did not grant any additional cases, but asked the U.S. Solicitor General for the federal government’s views on five new cases.   At the opening of the session, Chief Justice John G. Roberts, Jr., noted that Justice Antonin Scalia had been on the Court 25 years, and commented that “the place has not been the same since” Scalia joined the bench; the audience greeted the comment with laughter. The Chief’s statement is here.

The five cases on which the government’s views were invited are: DirecTV v. Levin (10-1322); Sandy Creek Energy v. Sierra Club (10-1333); Cook v. Rockwell International (10-1377); Fein v. Allen (10-1417), and Pacific Merchant Shipping Association v. Goldstene (10-1555).

Even as the Court sought the government’s advice on the DirecTV case, involving a challenge to differing tax treatment by states of interstate companies in order to favor more local business, it also denied outright any review of two other claims of discriminatory taxes by states on out-of-state companies: KFC Corporation v. Iowa (10-134) and Lamtec Corp. v. Washington (10-1289).

The other cases referred to the Solicitor General for comment involved a court order under the Clean Air Act to use improved technology even after a plant had already gone under construction without such a requirement (the Sandy Creek case), a test of whether state or federal law controls when a property owner is entitled to damages for radiation contamination of the property (the Cook case), a case on whether the federal Fair Debt Collection Practices Act allows lawsuits targeting a communication between a debt collector and a lawyer for the debtor (the Fein case), and a constitutional challenge to a California state regulation requiring ocean-going cargo vessels to use low-sulfur fuels when they are bound to or from ports in the state, and within 24 miles of the coastline (the Pacific Merchant Shipping case).

In an order of a kind not often issued by the Court, the Justices asked the state of Florida to respond to a new plea by a death-row inmate, just months after the Court had refused to hear the case.  It is a highly visible case that led members of Congress to introduce a proposed law, known as “Carlie’s law,” to deal more strictly with sex offenders released on parole.  The girl involved was 11-year-old Carlie Jane Brucia of Sarasota, whose abduction led to a nationwide manhunt for her assailant.  The girl was later found murdered. Joseph Smith, a mechanic, was convicted of murder, kidnapping, and sexual battery.  His petition to the Supreme Court, denied on June 28, involves a claim that his right to confront witnesses against him was violated when a lab test of DNA evidence was discussed at trial by someone other than the lab technician who actually did the test.  On the same day that the Court denied review of that plea, it granted review in a case raising a closely similar question: Williams v. Illinois (10-8505).  Smith’s lawyer asked the Justices to hold his case until after it decides the Williams case, which is scheduled for argument on Dec. 6.  That is the request to which the state was asked to respond.  (The case is Smith v. Florida, 09-10755.)

Another such unusual order came as the Court told the state of New Hampshire to respond to a petition for rehearing in another denied case: Addison v. New Hampshire (10-8527), involving issues over the reliability of eyewitness statements to police. That case is directly linked to an eyewitness case the Court already has granted, Perry v. New Hampshire (10-8974), scheduled for oral argument on Nov. 2.   In fact, the New Hampshire Supreme Court first decided the constitutional issues at stake in both cases in Addison’s case, and simply referred to that decision in its Perry ruling.

The Court chose not to rule on a request that it award more than $1.4 million in attorneys’ fees and expenses to the video game industry, for its victory last Term in the constitutional test of a California ban on the sale or rental of such games to minors.  Instead, the Court referred the request to the Ninth Circuit Court “for adjudication.”  The case is Brown v. Entertainment Merchants Association et al. (08-1448).

Among the hundreds of cases denied review was one involving a plea for the Court to reopen the question of the constitutionality of posting the Ten Commandments on the wall of a courtroom — an issue brought to it by a state judge in Ohio (DeWeese v. ACLU, 10-1512).  The Court, however, took no immediate action on the constitutionality of placing a Christian cross at the roadside sites of the deaths on duty of state highway patrolmen (Utah Highway Patrol Association v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297).  In another case involving church-state issues, the Court declined to sort out how far local governments must go, under the federal Religious Land Use Act, to allow churches to build new structures in areas of the city not zoned for such uses (San Leandro v. International Church of the Foursquare Gospel, 11-106).

The first of three new cases, testing whether the Second Amendment right to have a gun for personal use applies outside the home, was turned aside.  That case was Williams v. Maryland (10-1207), involving a man who was carrying a gun at a bus stop, on his way home from picking up the weapon at his girlfriend’s house.  The Court had asked for a response in that case, and it has also done so in two other cases raising similar issues on the scope of gun rights.  Neither one of those cases is yet ready for the Court to act.  They are Masciandaro v. U.S. (10-11212) and Chein v. California (10-1474).

The Court also passed up three Digital Age cases: a test of whether Internet-based companies like Yahoo must pay a royalty each time they download a song or musical composition to a paying customer (ASCAP v. U.S., 10-1337), a plea to allow users of cellphones to sue under state law to claim exposure to radiation from using such devices (Farina v. Nokia, 10-1064), and a request to clear up a conflict among lower courts on police authority to review the contents of a cellphone after taking the device from a person they have arrested and taken to a police station (Diaz v. California, 10-1231).

The Court dismissed as moot an appeal by Dallas County, Texas, and its chief elections officer challenging a federal court’s ruling that the county had wrongly failed to get federal government clearance for an electronic touch-screen voting method, and its method of counting votes in a manual recount.  The case apparently lost its legal significance because the methods had, in fact, been given federal clearance.  The case was Dallas County, et al., v. Texas Democratic Party (10-755).

Recommended Citation: Lyle Denniston, No new grants, five CVSGs (FINAL UPDATE), SCOTUSblog (Oct. 3, 2011, 10:04 AM),